FAQ: Including Heirs of a Deceased Sibling in a Virginia Partition Action

Short answer: Yes — if your deceased sibling owned an interest in the property you want partitioned, that ownership interest typically passes to the decedent’s personal representative (if the estate is open) or directly to the heirs (by probate or by intestate succession). Those persons who now own the decedent’s share are necessary parties to a partition action in Virginia. Below is a plain-language explanation of how that works and the practical steps to add heirs to the case.

Detailed Answer

1. Why heirs matter in a partition case

Partition is a lawsuit to divide or sell property when co-owners cannot agree. The court requires that all current owners be made parties so it can settle ownership and divide proceeds fairly. If your sibling was a co-owner and died, the sibling’s ownership interest didn’t disappear — it passed according to the decedent’s will or, if there is no will, under Virginia’s intestacy rules. The people who now hold that interest (the personal representative while the estate is open, and the heirs once ownership vests) must be included in the partition case.

For Virginia’s intestacy rules (how property passes when there is no will), see the Code of Virginia: https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-200/.

2. Who to join as parties

If the decedent left a will and the estate is opened in probate: join the personal representative (executor/administrator) as the representative of the estate for the decedent’s interest.
If the estate has been fully probated and the heirs have been determined and title transferred: join each heir or owner who now holds the decedent’s share.
If there is no probate and the heirs are known: you can join the heirs themselves as claimants to that share (but courts generally prefer or require the estate to be represented by its personal representative if probate is open).
If some heirs are unknown, minors, incapacitated, or cannot be located: the court can require notice by publication, appointment of a guardian ad litem, or appointment of a curator to represent unknown or unserved interests.

3. Typical sequence of steps to add heirs in Virginia

Perform a title and probate check. Look at the deed and the county land records to confirm whether the deceased sibling held title as a co-owner and in what form (joint tenancy, tenancy in common, etc.). Check the local probate records to see whether a will was filed or an estate opened.
If no probate exists, determine whether an estate should be opened. If the decedent had a will or if the property must pass through probate, a personal representative (executor or administrator) should be appointed in the appropriate circuit court.
Identify the heirs. If a will exists, the will names beneficiaries. If no will is available, identify heirs under Virginia’s intestacy rules (see Va. Code §64.2-200 linked above).
Add parties to the partition lawsuit. You can add heirs by: (a) naming them in the original partition complaint; or (b) if the complaint is already filed, by filing an amended complaint or a motion to join necessary parties (joinder). Virginia’s civil procedure requires that all persons with an ownership interest be made parties so the court can finally resolve title and distribution of proceeds.
Serve the newly added parties properly. Serve named heirs or the personal representative according to Virginia’s rules — personal service, substituted service, or (if permitted) service by publication for unknown or unlocatable heirs. If minors or incapacitated persons are parties, the court will require appointment of a guardian ad litem to protect their interests.
If heirs are unknown or cannot be located, ask the court for alternative notice or to appoint a guardian ad litem and to allow notice by publication. The court may allow limited steps to protect the interests of missing parties before final sale or distribution.

4. Practical results the court can order

After all necessary owners/heirs are before the court, the court can:

physically divide the land among owners (partition in kind) where practicable;
order a sale and divide proceeds according to ownership shares; or
approve a negotiated settlement among owners and dismiss the case with terms the court finds fair.

5. Common complications

Title issues: If the deed was joint tenancy with right of survivorship, the decedent’s interest may have passed automatically to the surviving co-owner(s) (check the deed language and record). If the deed was tenancy in common, the decedent’s interest passes to heirs or the estate.
Open or unadministered estate: If someone is serving as personal representative, the court generally expects the estate to be represented in litigation by that representative until probate closes.
Unknown or contested heirs: The court can require additional steps (publication, appointment of a guardian ad litem, or escrow of proceeds) to protect unknown interests.

6. Where Virginia law comes in

Partition actions and joinder of parties are governed by Virginia civil procedure and case law; questions about who inherits follow the probate and intestate succession provisions of the Code of Virginia. For intestacy rules and determining heirs, see Va. Code §64.2-200: https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-200/.

For the rules and practice about civil parties and actions like partition, consult the relevant portions of Title 8.01 of the Code of Virginia (Civil Remedies and Procedure): https://law.lis.virginia.gov/vacode/title8.01/

Helpful Hints

Do a complete title search first. Confirm how the deceased owned the property (joint tenancy vs. tenancy in common) and whether there are mortgages, liens, or recorded wills.
Check probate records. If someone already opened the estate, contact the personal representative. If no estate exists, consider whether you should open one — a probate might be necessary to transfer title cleanly to heirs.
Name parties correctly in your pleadings. Use full legal names and any known addresses. If the estate is open, name the personal representative in their representative capacity (e.g., “John Doe, as administrator of the estate of Jane Doe, deceased”).
If an heir is a minor or incapacitated adult, expect the court to require a guardian ad litem or guardian to be appointed before the court finalizes any sale or distribution.
If you cannot locate an heir, prepare to ask the court for substituted service or notice by publication and to show reasonable efforts to find that person.
Consider mediation or negotiation early. If heirs are cooperative, you can often avoid a contested sale or long litigation by agreeing to buyout terms, a voluntary sale, or a family settlement agreement.
Document everything. Keep records of searches, communications with other owners/heirs, and any probate filings. Courts want proof that parties were properly notified.
Talk to a Virginia attorney experienced in real estate and probate. Partition cases can involve overlapping property, probate, and civil procedure issues. An attorney can help prepare pleadings, handle joinder, and make sure notice and service meet Virginia rules.

Typical example (hypothetical)

Suppose you and your sibling owned a house as tenants in common. Your sibling dies intestate (no will). Under Virginia law the sibling’s share passes to their heirs under Va. Code §64.2-200. To start partition, you file a complaint naming yourself and the persons who now hold the sibling’s share. If no estate is open and you cannot locate one heir, you may ask the court to appoint a guardian ad litem for that unknown heir and allow notice by publication so the partition can proceed.

Next steps

Confirm how title is held (deed language and county land records).
Search local probate records for a will or administration.
If necessary, open probate or ask the court to permit joinder of heirs or of the personal representative.
File or amend your partition complaint to name the correct parties and arrange proper service.

Disclaimer: This article explains general legal principles under Virginia law and is intended for informational purposes only. It does not provide legal advice, and it does not create an attorney-client relationship. Laws and court procedures change and can be specific to the facts of your case. For advice tailored to your situation and help with pleadings, service, and court practice, consult a licensed Virginia attorney.