How a Partition Action Works When a Co-Owner Is Incompetent with a Court-Appointed Guardian in Wisconsin

Disclaimer: This is educational information only and not legal advice. Consult a Wisconsin attorney about your specific situation.

Detailed Answer — Overview and step-by-step process

When co-owners of real property cannot agree on use or division, any co-owner may file a partition action under Wisconsin law. If one co-owner has been adjudicated incompetent and has a court-appointed guardian, the partition process changes in important ways to protect that person’s interests. Below is a practical, step-by-step explanation of how a partition action typically proceeds in Wisconsin when a guardian represents a co-owner.

1. Confirm who must be named and served

All persons with an ownership interest (tenants in common, joint tenants, etc.) must be parties to a partition action. If a co-owner is incapacitated and a guardian has been appointed, the guardian should be the named representative for that co-owner’s interests. Before filing, obtain and review the guardian appointment order so you know whether the guardian is guardian of the estate (property), the person, or both. The guardian of the estate generally has authority to act about real property and must be served or otherwise joined in the action.

See Wisconsin guardianship law for the basic framework: Wis. Stat. ch. 54 (Guardianships).

2. Who can sue or be sued on behalf of the incapacitated co-owner

The guardian of the estate normally can prosecute or defend lawsuits affecting the ward’s property. If there is no guardian of the estate, the court may appoint a guardian ad litem or require appointment of a guardian before the case proceeds. The court must ensure the incapacitated person’s interests are protected throughout the partition.

3. Filing the partition complaint and providing notice

The petition (complaint) for partition should identify all co-owners and state that one co-owner is incapacitated and represented by a guardian. File in the circuit court for the county where the property is located under Wisconsin’s partition statutes. Provide proper service on the guardian in the manner required by civil procedure so the guardian can respond on the ward’s behalf.

See the partition statute chapter: Wis. Stat. ch. 842 (Partition).

4. Guardian’s authority and court approval

Although a guardian of the estate has authority to manage and protect the ward’s property, some transactions—especially the sale of real estate or actions that substantially affect the ward’s equity—may require prior court approval under guardianship rules. If the guardian intends to agree to a sale or an exchange as part of the partition, the guardian should be prepared to show the court that the result is in the ward’s best interests and that the transaction is authorized by the guardianship order or by separate court approval.

5. Options in a partition action

A partition action can end in different ways:

Partition in kind: physically dividing the property among co-owners. This is appropriate when the land can be fairly divided without harming value.
Partition by sale: selling the property and splitting proceeds. Courts order sale where physical division is impractical or would unfairly reduce value.
Buyout: one co-owner buys out the others’ interests, often after appraisal.

If a guardian represents a co-owner, the guardian must evaluate which option serves the ward’s financial welfare and seek court approval when required.

6. Valuation, commissioners, and sale procedures

If the court orders partition by sale, it typically appoints commissioners or a referee to value the property and manage the sale process. The court will consider bids, confirm a sale, and direct distribution of proceeds (after paying mortgages, liens, costs, and court-ordered expenses). The guardian will participate on behalf of the ward to protect the ward’s share of proceeds and to seek any protections the court should impose for the ward.

7. Protections for the incapacitated co-owner

Court protections can include:

Appointment of a guardian ad litem if a guardian cannot adequately represent the ward’s litigation interests.
Requiring the guardian to obtain prior court approval for a sale or compromise affecting the ward’s property.
Setting aside a portion of sale proceeds or placing funds in a restricted account for the ward’s benefit.
Ordering bonding or other safeguards to prevent misuse of the ward’s share.

8. Final accounting and distribution

After a sale or division, the court will enter a final decree setting out distribution of proceeds, payment of liens and costs, and any remaining orders about the ward’s funds. The guardian must account to the guardianship court for how the ward’s funds were used, and the guardianship court may supervise receipt and use of proceeds.

9. Practical timelines

Partition actions can take several months to over a year, depending on whether the parties settle, whether valuation or sale is needed, and whether guardianship approvals are required. Expect additional time if the guardian must return to the guardianship court for authorization of particular transactions.

Hypothetical example (illustrative)

Three siblings co-own a cottage. One sibling was adjudicated incapacitated and has a guardian of the estate. A second sibling files a partition action asking for sale. The plaintiff names the guardian as the representative for the ward and serves the guardian with the complaint. The guardian reviews the proposed sale and asks the guardianship court for authorization to consent to the sale in the ward’s best interest. The partition court appoints commissioners, the property is sold, and the partition court confirms the sale. The partition court orders distribution of net proceeds to the three owners. The guardian receives the ward’s share and reports the receipt and planned use to the guardianship court for approval and accounting.

When to involve an attorney

If you are a guardian, a co-owner, or the party filing a partition, consult a Wisconsin attorney with experience in both real estate litigation and guardianship/probate. Mistakes in service, failure to obtain required guardianship approvals, or inadequate protections for the ward can lead to reversals or liability later.

Helpful Hints

Gather the guardianship documentation early: get a copy of the appointment order, any letters of authority, and any limitation on the guardian’s powers.
Confirm whether the guardian is guardian of the estate (property) or only of the person; only the former typically handles property litigation.
Ask the guardian for proof of authority to act in the partition (court order or letters of guardianship).
Expect the court to require additional protections for the incapacitated co-owner—budget more time and possibly extra hearings for guardianship authorization.
Consider mediation or negotiation before filing: guardians often prefer a negotiated buyout or agreed sale with court approval rather than contested litigation.
Obtain an appraisal early to inform buyout offers or the court’s valuation process.
Make sure liens, mortgages, taxes, and homestead or exemption claims are identified—these affect net proceeds and may require separate court orders.
If the guardian is out of state, confirm recognition of the guardianship order or whether registration is required in Wisconsin.
Document everything: guardianship courts demand careful accounting of how the ward’s funds are handled post-sale.

Relevant Wisconsin statutes for further reading: partition statutes (Wis. Stat. ch. 842) — https://docs.legis.wisconsin.gov/statutes/statutes/842; guardianship statutes (Wis. Stat. ch. 54) — https://docs.legis.wisconsin.gov/statutes/statutes/54.

If you want, tell me whether you are the guardian, the incapacitated person’s relative, or another co-owner and I can list documents to bring to an attorney consult and sample questions to ask.