Detailed Answer

Short answer: Yes. Under Kentucky law, the heirs (or devisees) of a deceased co‑owner can and generally must be included in a partition action because the court cannot divide or order the sale of property without joining all persons who have a present legal or equitable interest in the land. How you add them depends on whether the decedent’s estate has been opened and whether the heirs are known or unknown.

Why heirs must be joined in a Kentucky partition action

A partition action divides (or orders the sale of) real property owned by two or more persons. Because the action affects each person’s legal interest, Kentucky law requires that all persons who claim an interest in the property be made parties so the court can fully and finally resolve ownership and rights to proceeds. See the Kentucky statutes governing partition (KRS Chapter 381) for the statutory framework: KRS Chapter 381 — Partition.

Common factual situations and how to proceed

Below are typical fact patterns and the usual steps to add heirs into the partition action.

1) The decedent’s probate estate has been opened and a personal representative (executor/administrator) was appointed

1. If the estate is opened, the personal representative represents the decedent’s interest in the property until title is transferred to heirs or devisees. You should name (or substitute) the personal representative as a defendant in the partition action. If the personal representative is already appointed, serve process on them and add them to the lawsuit (or amend your pleadings to include them).
2. If the probate file shows the personal representative, attach a copy of the letters (or a docket entry) to your court filing so the court sees who can speak for the decedent’s interest.

2) The decedent died intestate (no will) and no probate was opened

1. Identify the heirs-at-law. Kentucky’s intestacy rules govern who inherits when there is no will. For the statutory framework on intestate succession, review KRS Chapter 391 — Descent and Distribution.
2. If heirs are known and locatable, amend your complaint to add them as defendants and serve them personally. Courts expect you to join persons with an interest before distributing proceeds or ordering partition in kind.
3. If heirs are unknown or cannot be located, you can request the court to allow service by publication and to protect absent parties’ interests (for example, by requiring notice in a newspaper or by appointing a guardian ad litem). Kentucky court rules and local practice will guide service-by-publication procedure; check the Kentucky Court of Justice rules and local county practice.

3) The decedent’s interest has passed to named devisees in a will

1. If a will exists and probate is open, add the personal representative as a party, because the representative controls the estate’s assets until distribution.
2. If the will has been admitted and the devisees are known, you can name them directly as parties (or wait until distribution is completed and the devisees hold title). If they remain unjoined, the court typically will not finally divide or sell the property without joining them.

Practical steps to add heirs to a partition action in Kentucky

1. Check title and probate records. Look at the chain of title, previous deeds, and the local circuit court probate records to find whether a probate estate exists and who the personal representative is.
2. File a motion or amend the complaint. If heirs or a personal representative are not yet parties, file an amended complaint adding them or file a motion to substitute the personal representative under the civil‑procedure rule that allows substitution when a party dies (court will permit amendment when necessary to decide the case fairly).
3. Provide proof of death and relationship. Attach a certified death certificate and any probate filings (letters, will, etc.). If you rely on intestacy, provide genealogical or public‑record evidence showing heirship.
4. Serve the new parties properly. Serve known heirs by personal service or their attorneys. For unknown or non‑resident heirs, ask the court for constructive service (publication) and follow local rules for affidavits and notice.
5. If heirs are minors or legally incapacitated. Ask the court to appoint a guardian ad litem or to require that a guardian or conservator be joined before final disposition.
6. Consider asking the court to appoint an attorney for absent/unlocatable heirs or to require funds to be deposited into the court registry. This protects the court from later claims.

When substitution or joinder is governed by court rules

Civil procedure rules allow substitution of parties when a party dies and permit joinder of necessary parties. If a party died after the action began, you typically file a motion or notice to substitute the decedent’s personal representative. If the action was filed after the owner’s death, you must name whoever owns the interest now (the heirs or devisees) or sue the estate/personal representative instead.

If an heir contests the partition

Once heirs are joined, they can object to partition in kind or to sale. The court will consider their legal claims, their ownership share, liens, and equities. The judge may order partition in kind if practicable or sale with proceeds distributed according to ownership interests. See KRS Chapter 381 for the statutory partition procedures.

When to involve an attorney

You should consider hiring an attorney if:

• Heirs are numerous, unknown, or dispersed out of state;
• There are competing claims to ownership, liens, or title defects;
• Minor or incapacitated heirs must be protected;
• You need help with probate coordination, pleadings, or service by publication.

Helpful Hints

• Start by ordering a title search and checking county probate records—those two searches often identify an appointed personal representative or named heirs.
• Obtain a certified death certificate for the decedent before filing an amendment or substitution motion.
• If probate exists, serve the personal representative rather than every individual heir until distribution occurs—this simplifies joinder.
• When heirs are unknown, ask the court early for permission to serve by publication; follow local publication rules exactly (affidavits, timing, and content matter).
• If you must name “unknown heirs,” use clear descriptive language in the complaint (for example: “John Doe and all unknown heirs of Jane Smith, deceased”) and file supporting affidavits showing a diligent search for heirs.
• Keep records of all efforts to locate heirs (mail returns, search results, social media, genealogical records)—courts review these when allowing publication service.
• If an heir is a minor or incapacitated, don’t attempt private settlement without court approval—get a guardian or court order to bind that person legally.
• Document liens, mortgages, tax delinquencies, and boundary disputes before asking the court to sell or divide the property; these issues affect distribution.

Useful statutory resources: KRS Chapter 381 (partition): https://apps.legislature.ky.gov/statutes/chapter.aspx?id=381; KRS Chapter 391 (descent and distribution/intestacy): https://apps.legislature.ky.gov/statutes/chapter.aspx?id=391. For local civil procedure and service rules, consult the Kentucky Court of Justice rules pages: https://kycourts.gov.

Disclaimer: I am not a lawyer. This article explains general principles under Kentucky law to help you understand options and next steps. This is not legal advice. For advice about your specific facts and to file or respond to a partition action properly, consult a licensed Kentucky attorney.