Detailed Answer
Short answer: Yes. When a co-owner dies, the person or persons who inherit that co-owner’s share (the heirs or devisees) must generally be included in a West Virginia partition action so the court can divide or sell the property and settle ownership. How you add them depends on whether the decedent’s interest passed through probate, whether the heirs are known, and whether any are minors or incapacitated.
Why heirs must usually be included
Partition is a remedy to divide or sell real property held in co-ownership. A court cannot finally divide or sell an interest unless all parties with a legal or equitable interest in the property are before the court. If your deceased sibling owned a share, that share passes to someone by will or by intestate succession; those successors now hold the interest and are necessary parties to the partition action.
Where to look for the heirs
- Check whether the decedent’s estate was opened in probate (county probate court). The personal representative (executor/administrator) may hold title to the decedent’s interest until distribution.
- If there is a will, the will and the probate file list beneficiaries.
- If there is no probate, heirship may pass by intestacy. County probate records, a title search, and an heirship or genealogy search can identify likely heirs.
Typical ways to add heirs to the partition action in West Virginia
- Name them directly in the initial complaint. If you know the heirs before filing, list each heir as a defendant in the partition petition and serve them with process (personal service where possible).
- Add them later by amendment. If you discover heirs after the case starts, file an amended complaint or motion to join necessary parties. West Virginia civil procedure allows joinder of necessary parties so the court can resolve all interests together.
- Join the estate or personal representative. If the decedent’s estate is open, name the personal representative (executor/administrator) as a party — sometimes easier than naming each beneficiary while probate is ongoing.
- Use unknown heir/unknown devisee designations plus publication. If you cannot identify or locate heirs after a diligent search, ask the court to allow service by publication or to permit naming “unknown heirs” and proceed with constructive notice. Courts often require evidence of a diligent search before permitting service by publication.
- Appoint a guardian ad litem or representative for minors/incapacitated heirs. If an heir is a minor or legally incapacitated, the court will require a guardian ad litem or a guardian/guardian of the estate to represent their interests before finalizing any partition or sale.
Practical steps to follow
- Run a title search to find current recorded owners and any recorded transfers after the sibling’s death.
- Search probate records in the county where the decedent lived and where the property is located to find any estate files or wills.
- If there is an open probate estate, communicate with the personal representative and consider joining the estate as a party rather than every beneficiary individually.
- If heirs are unknown, document your search efforts (probate records, phone directories, social media, genealogical resources) and ask the court for permission to use service by publication or to appoint a curator/guardian ad litem.
- If you add parties after filing, file an amended complaint and ask the court to issue new service where required.
- Consider resolving ownership outside court if possible — a buyout, partition by agreement, or quiet title settlement can be cheaper and faster than litigated partition.
Relevant West Virginia law and resources
Partition and joinder procedures are governed by state statutes and West Virginia civil procedure. For the most current statutory language and procedural rules, consult the West Virginia Code online and the West Virginia Judiciary rules:
- West Virginia Code (online): https://code.wvlegislature.gov/
- West Virginia Judiciary — Rules of Civil Procedure and local rules: https://www.courtswv.gov/legal-community/rules/
When to get a lawyer
Consider consulting a West Virginia real estate or probate attorney if any of these apply:
- Heirs are unknown, out of state, or disputing inheritance.
- There are minors, incapacitated persons, or complex title issues.
- The property has liens, mortgages, or environmental concerns.
- You prefer to try to negotiate a buyout or negotiated partition rather than litigating.
Bottom line: Heirs of a deceased sibling who inherit that sibling’s ownership interest must generally be included in a partition action in West Virginia. The usual process is to identify heirs through probate or title work, name them (or the estate/representative) in the complaint, or seek the court’s permission to proceed when heirs are unknown, using publication and appointment of representatives as needed.
Disclaimer: This article explains general West Virginia law and procedures and is not legal advice. For guidance about a specific case, contact a licensed West Virginia attorney.
Helpful Hints
- Start with a title search and a probate search in the county where the decedent lived — these often identify heirs and any open estate.
- If the estate is open, join the estate or the personal representative rather than every beneficiary while probate runs.
- Document every effort to find missing heirs (phone calls, certified mail, online searches) — courts expect diligence before allowing service by publication.
- For minors or incapacitated persons, expect the court to require a guardian ad litem; plan extra time and cost for that step.
- Consider mediation or negotiated partition if family relationships and the property’s value make settlement possible — it is often faster and cheaper than court-ordered sale.
- File a lis pendens (notice of pending action) to protect the property while the partition case is pending, but do so under applicable local rules.
- Talk to a West Virginia attorney early if title is clouded, there are liens, or heirs are contentious — those issues complicate partition actions.