Overview
This article explains how to begin and pursue a partition action or a petition to sell inherited real estate in Massachusetts when some heirs are minors. It outlines the statutory framework, practical steps, how minors are protected, and what to expect from the courts. This is general information and not legal advice.
Detailed Answer
Statutory framework
Partition actions in Massachusetts are governed by Massachusetts General Laws, Chapter 240. The statute provides the remedy for co-owners who cannot agree on continued joint ownership of real estate and allows a court to partition the land physically or order a sale and division of proceeds. See M.G.L. c.240: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter240.
How minors are treated in Massachusetts
Minors cannot usually manage real property or receive unrestricted cash distributions without oversight. The Probate and Family Court (or an appropriate court) can appoint a guardian or conservator for a minor’s estate or appoint a guardian ad litem to represent the minor’s interests in litigation. The Massachusetts probate statutes and rules supply the authority and procedures for appointing such representatives. See the Massachusetts Probate Code: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter190B, and consult your local Probate and Family Court: https://www.mass.gov/orgs/probate-and-family-court.
Practical step-by-step process
- Identify owners and the minors’ status. Locate the deed, will, or probate order that shows who inherited the property. Confirm which heirs are minors and their relationship to the decedent.
- Try to agree first. The fastest and least expensive solution is voluntary: heirs can agree to a sale, buy out a minor’s share (with court approval), or sign a written agreement to avoid litigation.
- If agreement fails, prepare to file a partition action. Under M.G.L. c.240, a co-owner may file a complaint for partition in the proper court (typically the court that handles real estate disputes where the land lies — consult local court rules or an attorney about filing in Superior Court vs. Land Court). The complaint must name all co-owners as parties.
-
Name and protect minors in the lawsuit. You must identify minors by name in the complaint, but the court will require that they be represented. The court often requires one of these protections:
- Appointment of a guardian ad litem (GAL) or next friend to represent the minor in the partition case;
- Appointment (through the Probate and Family Court) of a guardian of the minor’s estate to handle money or sales proceeds;
- Other court-ordered protections (e.g., requiring that proceeds be held in a blocked account or paid into the probate court until a guardian is appointed).
The Probate and Family Court handles guardianships and related estate protections — contact that court early so a guardian can be appointed if needed. See Probate Court information: https://www.mass.gov/orgs/probate-and-family-court.
- Ask the court for partition in kind or for sale. The court will examine whether the property can be fairly divided (partition in kind). If it cannot (for example, a single-family home that cannot be split), the court may order sale and division of proceeds. Under M.G.L. c.240 the court has discretion to order sale when partition in kind is impractical. See M.G.L. c.240: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter240.
- Sale process and court supervision. If the court orders sale, it will set the method (public auction, supervised sale, or a private sale with court approval). The court may require notice to all interested parties and will review the sale price and terms. For minors, the court takes extra care to ensure the sale is in the minor’s best interest and that proceeds are protected.
- Handling proceeds for minors. Proceeds attributable to minors are typically placed under court supervision or paid to an appointed guardian of the minor’s estate. The court may require funds to be held in a blocked account or invested until the minor reaches majority or until the court approves disposition consistent with the minor’s needs.
- Court approval for distributions and settlements. The Probate and Family Court or the court handling the partition will normally have to approve any settlement or distribution affecting a minor’s share. This approval process protects the minor and can require additional hearings or reports.
Who pays costs and how long does it take?
Costs include filing fees, attorney fees, appraisal costs, and sale expenses. The court may allocate some costs from sale proceeds. Timing varies: an uncontested sale may take a few months, while contested partition litigation with guardianship and court-supervised sale can take a year or more depending on complexity and court schedules.
Where to file and who can help
Seek guidance from an attorney familiar with Massachusetts partition law and probate procedure. The Land Court handles many real-estate title and boundary issues; information is available at the Land Court page: https://www.mass.gov/orgs/land-court. Probate and Family Court handles guardianships and matters involving minors: https://www.mass.gov/orgs/probate-and-family-court.
Helpful Hints
- Document heirship early: get deeds, wills, death certificates, and probate inventories ready.
- Talk to all heirs and attempt a voluntary sale or buyout before filing—litigation is expensive and slow.
- Consult the Probate and Family Court about appointing a guardian of the minor’s estate before a sale or distribution.
- Obtain at least one independent appraisal to support sale price and court approval.
- Expect the court to require protective measures for minors’ proceeds (blocked accounts, guardianship oversight, or periodic accounting).
- Consider mediation as an alternative to a full partition suit—courts often encourage settlement.
- Keep a clear paper trail for all communications, offers, and settlement proposals—courts review them when approving transactions involving minors.
- Get tailored legal advice early. A lawyer can advise whether to file in Superior Court or Land Court and help coordinate with probate procedures for minors.
Disclaimer: This information explains general principles of Massachusetts law and is provided for educational purposes only. It does not create an attorney-client relationship and is not legal advice. For advice about your situation, contact a licensed Massachusetts attorney or the local Probate and Family Court.