How to File a Partition Action to Force Sale of a Late Parent’s House in West Virginia | West Virginia Partition Actions

Quick answer

If you and other heirs or co-owners cannot agree about the late father’s house, you may file a civil action for partition in the West Virginia circuit court for the county where the property is located. A partition action asks the court to divide the land among the owners (partition in kind) or, if dividing the land is not practical, to order a sale and distribute the sale proceeds among the owners after paying liens, taxes, and costs.

Detailed answer — what a partition action does and when to use it

A partition action lets one or more co-owners of real property force a division or sale when the owners cannot agree. Common situations when someone files a partition action after a death include:

The decedent left the home to multiple heirs as tenants in common.
One heir lives in the house but others want to sell or be paid their share.
The personal representative (executor/administrator) does not have clear authority or the heirs disagree about selling estate real property.

In West Virginia, circuit courts handle civil property disputes, including partition. For general court information see the West Virginia Judiciary circuit court pages: https://www.courtswv.gov/circuit-court/index.html. For the state code and statutes, use the West Virginia Legislature code site: https://code.wvlegislature.gov/.

Key legal concepts you should know

Tenancy in common: Each owner holds an undivided interest that can be partitioned. Most intestate inheritances create tenants in common unless the deed or will creates a joint tenancy.
Partition in kind: The court divides the physical land among owners if feasible.
Partition by sale: If dividing the land fairly is impractical, the court orders a sale and divides proceeds proportionally after deductions.
Personal representative vs. co-owners: If the property is still in probate, the personal representative may have authority to sell with court approval; if the estate closed or title passed to heirs, any co-owner can file for partition.

Step-by-step: How to prepare and file a partition action in West Virginia

Confirm ownership and title.

Obtain the deed, the decedent’s will (if any), and the probate files (if the estate was opened). Confirm who holds legal title now. If title is still in the decedent’s name and the estate is open, contact the personal representative or probate court. You can view probate resources at the West Virginia courts probate page: https://www.courtswv.gov/legal-community/probate/index.html.
Try to resolve the matter informally first.

Talk with heirs and co-owners. A written buyout agreement, voluntary sale listing, or written consent to sell signed by all co-owners avoids court. If everyone agrees, the sale goes through like a typical real estate sale and the proceeds are split per the owners’ interests.
Collect documents and identify interested parties.

Gather the deed, mortgage statements, tax bills, probate documents, and any leases or occupancy agreements. Identify all persons who hold an interest in the property (heirs, devisees, lienholders, mortgage holders). All must be named or joined in the suit or given proper notice.
Prepare and file your complaint for partition in the proper circuit court.

The complaint typically states the names and addresses of the parties, describes the property by legal description, explains each party’s claimed interest, and requests partition in kind or, if not feasible, a sale. The complaint also asks the court to appoint a commissioner to evaluate, sell, and report on the property as needed. Each county circuit court has local filing procedures and fees; check the county clerk or circuit court website for forms and fee schedules. General court forms and information are at: https://www.courtswv.gov/forms/index.html.
Serve the defendants and lienholders.

Give legal notice to all defendants (co-owners) and to lienholders, mortgagees, and any person with recorded interest. Proper service is essential; the court will not proceed without it.
Court process: answer, hearings, and possible settlement.

Defendants usually file answers. The court may hold hearings to determine whether division in kind is possible, to sort out adverse claims, and to resolve liens and credits for improvements or rents. The court may order mediation or require accounting of estate proceeds or mortgage obligations.
Appraisal, commissioners, and sale procedure.

If sale is ordered, the court often appoints a commissioner or special master to appraise, advertise, and sell the property at public auction or private sale under court supervision. Sale proceeds pay mortgages, taxes, court costs, and valid liens before distribution to owners according to their shares.
Distribution of proceeds and closing the case.

After sale and payment of debts and costs, the court enters an order distributing net proceeds to owners. If the property was part of a probate estate, the personal representative may need to report the sale and distribution to probate court as well.

Practical issues to expect

Mortgages and tax liens typically must be paid from sale proceeds. If a mortgage exists, the lender’s payoff will come before owners’ shares.
Credit for improvements or rent: The court can account for money spent maintaining the property or rent collected while one co-owner occupied the property.
Costs and timing: Partition suits take months and can be costly. Court costs, appraisal fees, advertising costs, and attorney fees come out of the estate or the sale proceeds, depending on the order.
Possession and eviction: If an occupant refuses to leave after the court orders sale or division, the court can enforce the order, which can include eviction procedures.

When probate matters change the approach

If the house remains estate property because the decedent died intestate or the probate is still open, the personal representative may have authority to sell the property with probate court approval. When title already passed to heirs (probate closed or no probate needed), any co-owner may begin partition. If you are unsure who has legal title now, check the estate record in the county probate court and consult the county recorder for deed records.

Where to file and where to get forms

File the partition complaint in the West Virginia circuit court for the county where the real property is located. Contact the county clerk or the local circuit court clerk for filing requirements and fee schedules. Circuit court and forms information: https://www.courtswv.gov/circuit-court/index.html.

Statutory resources and further reading

State statutes governing property, probate, and civil procedure can affect partition actions. Use the West Virginia Code search and statutes at the Legislature’s site: https://code.wvlegislature.gov/. For probate procedure and rules, consult the West Virginia Rules of Civil Procedure and local probate rules available from the judiciary site: https://www.courtswv.gov/.

Helpful hints — practical tips to make a partition case smoother

Get a current title search early. It identifies heirs, recorded liens, and other encumbrances you must handle.
Obtain at least one independent professional appraisal so the court and parties have a neutral value estimate.
Document occupancy, rent payments, repairs, and improvements. The court may award credits or debits based on these facts.
If you are the personal representative and want to sell quickly, ask the probate court for authority to sell estate real property. That may be faster than a partition suit.
Consider mediation. A mediated buyout or sale often costs far less in time and money than a full contested partition.
Plan for taxes and closing costs. Net distributions often differ from rough splits because of liens, transfer taxes, and sale costs.
Talk with the county clerk about filing fees and required court forms before filing the complaint.
Keep communication written and preserve records of offers, agreements, and communications with other heirs.

When to consult a lawyer

Consult an attorney if title is unclear, if serious creditor claims or multiple mortgages exist, if you expect complex accounting for improvements or rents, or if heirs are hostile. An attorney can prepare pleadings, represent you in hearings, and help obtain court supervision for sale and distribution. If you decide to hire counsel, choose a lawyer experienced in West Virginia real property and probate litigation.