Filing a Partition Action or Petition to Sell Inherited Real Estate When Heirs Are Minors — West Virginia

Detailed Answer — how the process works in West Virginia

This answer explains the usual steps, the court safeguards for minors, and practical issues to expect. This is general information and may not cover every fact pattern.

1. Which court has authority?

File the partition action or petition for sale in the West Virginia circuit court for the county where the real estate is located. The circuit court handles disputes about title, partition of land, and approval of sales where an owner is a minor.

2. Who must be joined as parties?

The complaint (often called a complaint for partition or petition for sale) must name and notify all persons who hold or claim an interest in the property: heirs, devisees, lienholders, mortgagees, and persons in possession. If an heir is a minor, the lawsuit must provide proper legal representation for that minor (described below).

3. Typical pleadings and relief requested

The plaintiff usually asks the court to:

• Declare that the property is owned jointly by the named heirs;
• Order partition in kind (physically divide the land) if feasible; or
• Order a sale of the property and divide or distribute net proceeds among owners according to their interests.

4. How the court protects minor heirs

West Virginia courts take special care when a minor’s property or money is at stake. Typical protections include:

• Appointment of a guardian ad litem (GAL) or next friend to represent the minor’s legal interests in the litigation. The GAL is independent and looks out for the minor’s best interests in the case.
• If the court approves a sale, the court will review the fairness of the sale terms and the proposed distribution of proceeds. The court may require additional evidence (e.g., appraisal) before approving sale.
• When proceeds will be paid to or for a minor, the court often requires that the minor’s share be handled under protective procedures: deposited to the clerk, placed in a blocked or restricted account, or turned over to a court-appointed guardian of the estate (conservator) who must manage funds under court supervision.

5. Service on minors and representation

Minors cannot be served in the ordinary way. Service is typically made on a parent or guardian if they have legal authority, but the court will still require an independent representative (guardian ad litem) to advocate for the minor’s interests. If a minor already has a court-appointed guardian of the estate, that guardian may need to be served and will act on the minor’s behalf.

6. Sale process and distribution of proceeds

If the court orders sale, it will supervise the process. The court may:

• Order a public auction or private sale following court-authorized terms;
• Require appraisals and a report to the court; and
• Approve distribution of net proceeds to owners or require that the minor’s portion be held or managed under court supervision (for example, deposited with the court clerk or paid to a guardian of the estate).

7. When probate or an administrator is involved

If the property is still in a decedent’s probate estate, the personal representative (executor or administrator) may have authority to sell or manage property under the probate court’s control. Even so, sale of a minor heir’s interest normally still requires court approval and safeguards for the minor’s share.

8. Alternatives to a contested partition

Because partition actions can be expensive and take months, consider alternatives before filing:

• Agreement among heirs to sell the property and divide proceeds (with court approval for minors’ shares);
• One heir buying out others’ interests at an agreed price;
• Mediation to reach a consensual solution that the court can later approve for minor heirs.

9. Practical timeline and costs

Expect several months to more than a year depending on complexity, whether minors are involved, and whether there is disagreement among heirs. Costs include court filing fees, attorney fees, appraisal fees, and possibly guardian ad litem fees or guardian-of-estate expenses. If the court orders the sale, it will also supervise distribution and may require additional hearings.

10. Where to find West Virginia laws and local procedures

West Virginia statutes and court rules address guardianship, probate, and civil procedure. You can search the West Virginia Code at the West Virginia Legislature website: https://code.wvlegislature.gov/. For circuit court procedures, local forms, and contact information for the circuit court clerk, see the West Virginia Judiciary website: https://www.courtswv.gov/.

Because statutes and local rules vary in detail, check the applicable provisions on guardianship and minors and the circuit court’s local rules before filing.

Helpful Hints

• Identify all owners and potential claimants before filing: heirs, lienholders, mortgagees, and persons in possession.
• Check whether the property passed by probate or outside probate (e.g., joint tenancy or transfer on death). Probate status affects who can act for the estate.
• Get a current title report and a professional appraisal early to inform valuation and sale planning.
• If minor heirs exist, expect the court to appoint a guardian ad litem and to require special handling of the minor’s share.
• Consider alternatives such as a negotiated buyout, consensual sale, or mediation to reduce court costs and delay.
• If a sale is necessary, be prepared to document why partition in kind isn’t feasible (e.g., subdivision isn’t practical) so the court will consider sale instead.
• Ask the clerk of court in the county where the property lies about local filing requirements and available forms; local clerks often list probate and civil forms on the circuit court website.
• Keep records of communications among heirs, sale offers, and appraisals—these will help the court evaluate fairness.
• Expect the court to require that a minor’s share be held or supervised: funds may be deposited with the clerk, placed in a blocked account, or managed by a court-appointed guardian of the estate.
• Discuss fee arrangements and likely court costs with any attorney you consult so you understand whether the estate or individual heirs pay fees and how fees affect net proceeds.