Detailed Answer

Short answer: In Alabama, if you and others own your late father’s house as co-owners (commonly tenants in common) and you cannot agree on what to do with the property, you can ask a court to partition it. A partition action asks the court to divide the property among owners (partition in kind) or, if division isn’t practical, to order a sale and divide the sale proceeds. Partition actions are filed in the appropriate circuit court as an equity matter. This article explains the steps, what you must prove, how the sale process works in Alabama, how probate interacts with a partition, likely costs and timelines, and practical next steps.

1. Do you have the legal right to bring a partition action?

Anyone who owns an undivided interest in real estate can seek partition. Common situations:

Title in your late father’s name with multiple heirs named on the deed or heirs who inherited as tenants in common.
The property was left to multiple people in a will and title has been transferred to those heirs (or will be shortly through probate).
Co-owners disagree on selling or dividing the property.

If the property is still in your father’s name and no one has been appointed personal representative, you may need to probate the estate or be sure that the persons you name as co-owners actually have an ownership interest before filing. If a personal representative (executor/administrator) exists, the representative often will be a named party in the partition action.

2. Where to file

File a petition for partition in the circuit court of the county where the property is located. Partition is an equitable remedy, so circuit (or chancery/equity) courts handle it.

3. How to prepare the petition (complaint)

Your petition should: identify the property precisely; name every person with a known legal or equitable interest (owners, heirs, devisees, lienholders, mortgage holders, and other recorded encumbrancers); state how the owners hold title; explain why partition in kind is not practical (if you are asking for sale); and request that the court either partition the property in kind or appoint a commissioner/guardian to sell and divide proceeds. Typical elements:

Property legal description and street address.
Names and last-known addresses of all co-owners and anyone with an interest (creditors, mortgagees, tenants, life tenants).
Allegation showing your ownership interest and basis of title (deed, intestacy/heirship, will).
Request that the court determine interests and order partition in kind or sale; appointment of commissioner/commissioners to make the sale; accounting; and an order dividing net proceeds among owners after liens/costs.

4. Service of process and notice

Alabama procedure requires service of the petition on all defendants (co-owners, lienholders, etc.). If a defendant cannot be located, the court may allow service by publication after you demonstrate reasonable efforts to find them. Mortgages and recorded liens must be named so the purchaser at sale takes subject to appropriate liens or so the sale pays them off from proceeds.

5. Court process and evidence

After filing and service, defendants can respond and assert claims (e.g., ownership disputes, counterclaims, or equitable defenses like laches or estoppel). The court may schedule hearings. Evidence you should be ready to present:

Title documents (deeds, recorded instruments).
Death certificate and probate paperwork showing heirs or transfer by will (if applicable).
Mortgages, liens, judgments affecting the property.
Appraisals or valuation evidence if disputing value or feasibility of partition in kind.

6. Partition in kind vs. partition by sale

The preferred remedy is partition in kind — physically dividing land among owners — but many houses on a single lot cannot be fairly divided. If the court finds partition in kind would be impractical or would diminish value, it will order a sale. The court usually appoints a commissioner (or commissioners) to sell the property under court supervision, often at public auction, and to report back. The court then confirms the sale and directs distribution of net proceeds after paying mortgages, liens, costs, and commissions.

7. Liens, mortgages, and encumbrances

Recorded mortgages and liens generally must be satisfied from sale proceeds unless a buyer assumes them. A purchaser at a properly conducted court-ordered sale takes title subject to some liens or free of others depending on notice and statute. Make sure all known encumbrances are named and given notice so the sale can clear title.

8. Probate interaction

If the decedent’s estate has not been probated, establishing who legally owns the property may require probate. If heirs already hold title (for example, the deed was retitled), you can proceed with partition. If the personal representative still controls title, the representative should be joined or duties resolved in probate first. Consult local counsel if the probate case and a partition case should proceed together.

9. Costs, timeline, and likely outcomes

Timeline: A straightforward uncontested partition can take several months; contested cases can take a year or longer.
Costs: Court filing fees, service costs, attorney fees (each side usually pays their own unless the court orders otherwise), commissioner fees, appraisal costs, and sale costs. Net proceeds are distributed after those deductions.
Outcomes: Court may order a physical division, sell and split proceeds, or approve a buyout by a co-owner who pays other owners fair value.

10. Practical tips for co-owners

Attempt a voluntary buyout or negotiated sale before filing — it’s almost always cheaper and faster.
Get a current appraisal early to inform negotiations.
Keep records of payments you made related to the property (taxes, mortgage payments, repairs) — the court can account for contributions when dividing proceeds.

Relevant Alabama law resources

Partition law and civil procedure are governed by the Code of Alabama and by Alabama court rules. To review statutes and rules, use the Alabama Legislature website: https://www.legislature.state.al.us/, and the Alabama Administrative Office of Courts site for local court rules and forms: https://judicial.alabama.gov/. Search those sites for “partition” and “real property” to find relevant statutory language and local practice or contact your county circuit clerk for local filing requirements.

When to hire an attorney

Consider hiring a lawyer if:

Title or heirship is in dispute.
Large liens, mortgages, or creditors are involved.
Co-owners refuse reasonable negotiation or the case is contested.
You want to pursue or defend an equitable claim (for example, occupied property where an occupant refuses to allow sale or a co-owner asserts a life estate).

How to find local counsel

Search for Alabama real estate or property litigation attorneys, contact your county bar association for referrals, or use the Alabama State Bar lawyer directory. Ask any prospective attorney about their experience with partition actions, typical fees, and estimated timeline.

Disclaimer

This article is for general information only and is not legal advice. Laws change and facts matter. Consult a licensed Alabama attorney to get advice tailored to your situation.

Helpful Hints

Gather the deed, mortgage statements, recent tax bills, death certificate, any will or probate paperwork, and a recent appraisal before meeting an attorney.
If you want the house sold quickly and co-owners resist, a partition by sale is the usual route — be prepared for court timelines and costs.
If one co-owner lives in the house and another wants out, consider a buyout offer based on a professional appraisal before suing to avoid extra costs.
Name all possible claimants and all recorded lienholders in your initial petition to avoid issues later.
Document payments you made for taxes, mortgage, insurance, and repairs; courts can adjust distributions to reflect unequal contributions.
Check whether the property is in the decedent’s probate estate; resolving probate issues first can simplify or clarify who must be named as parties.
Expect judges to prefer practical solutions: sales that maximize value and clear title for distribution of proceeds.