Detailed Answer

Short answer: Yes — if the deceased sibling owned a share of the property at the time of death, the people who inherited that share (the heirs or devisees) are necessary or proper parties to a partition action in New Hampshire. How you add them depends on how title passed at death (by survivorship or by will/intestacy) and whether there has been a probate administration.

What a partition action does: A partition action asks the court to divide real property among co-owners (or sell it and divide the proceeds) when co-owners cannot agree. To divide or sell fairly, the court must have before it all persons who hold an ownership interest in the property.

1) Who must be joined as parties?

If the deceased sibling held a present ownership interest (for example, as a tenant in common), that interest did not vanish at death — it passed to the heirs or beneficiaries. Those heirs therefore have an interest in the property and must be included (joined) in the partition action so the court can bind them by its order.

By contrast, if the deceased owned the property as joint tenants with a right of survivorship, the decedent’s interest may have passed automatically to the surviving joint tenant(s). In that case the heirs will not have an ownership interest and typically are not necessary parties. You must examine the deed and title to know which situation applies.

2) How to add heirs to the partition action

Common steps used in New Hampshire:

1. Confirm how title passed at death. Review the deed, the chain of title, and any recorded instruments. If deed language shows joint tenancy with survivorship, heirs may not get a share.
2. Identify heirs or devisees. If the owner left a will or there has been a probate administration, the probate file will identify the personal representative and beneficiaries. If there was no probate, you may need to determine heirs under New Hampshire intestacy law.
3. If there is a personal representative (executor/administrator): ask the representative to be served and to appear in the partition action. Alternatively, the personal representative can be substituted as the representative of the estate’s interest. The representative has authority to act for estate-owned property.
4. If there is no probate or no personal representative: you can serve the known heirs directly. If some heirs are unknown or cannot be located, the court allows service by publication and may require appointment of a guardian ad litem or next friend to represent unknown or unserved persons’ interests.
5. Use the civil procedure mechanisms for substitution and joinder. The court can permit substitution of the proper parties (for example, replacing the deceased owner with his/her heirs or the estate’s representative) so the case can continue. In practice, you provide the court with evidence of death (a death certificate), proof of heirship or probate records, and the proposed pleadings naming the heirs or representative.
6. File and serve amended pleadings. After identifying the heirs, you typically file an amended complaint or a motion to join parties under the court’s joinder/substitution rules and serve each added party with process (summons and complaint) and supporting documents.

3) What evidence will the court want?

The court will expect documentary proof showing the deceased’s death and the basis for adding the heirs. Typical items include:

• Certified death certificate;
• Recorded deed(s) showing the deceased’s interest;
• Probate records or letters testamentary/letters of administration if an estate was opened;
• An affidavit of heirship or other sworn statements identifying heirs when there has been no probate;
• Proof of service for all added parties, or a court order authorizing substituted or published service for unknown heirs.

4) Practical routes when heirs are unknown or contested

If heirs are unknown or there is a dispute over who the heirs are, these are typical options:

• Open a short probate (administration) to get a formal determination of heirs and appointment of a personal representative who can represent the decedent’s interest in the partition.
• Proceed in the partition court but ask the court to allow service by publication on unknown heirs and to appoint a guardian ad litem to protect their interests.
• Bring a separate “determination of heirs” action in probate (or include necessary pleadings) to settle heirship before completing the partition.

5) Where to find the rules and statutes

New Hampshire’s civil rules control joinder and substitution procedures and the Probate Court handles administrations and determinations of heirs. Helpful official resources:

• New Hampshire Judicial Branch — Probate Courts: https://www.courts.state.nh.us/courts/probate/
• New Hampshire Judicial Branch — Court Rules (Civil Rules, including joinder/substitution procedures): https://www.courts.state.nh.us/rules/default.htm
• New Hampshire Revised Statutes (searchable index): https://www.gencourt.state.nh.us/rsa/html/indexes/default.html

Because partition practice involves both real property and estate/probate issues, courts apply civil procedure rules together with relevant statutory provisions. If you plan to proceed without an attorney, check both the probate court and superior court procedures for joinder, service by publication, and appointment of a guardian ad litem.

Helpful Hints

• Review the deed first. Look for “joint tenants,” “tenants in common,” or language showing survivorship — this controls whether heirs have an interest.
• Search for a will and any probate filings. Probate files simplify identifying and adding the correct parties.
• Get a certified copy of the death certificate early and record it where required.
• If you cannot locate heirs, ask the court about service by publication and the need for a guardian ad litem to protect unknown parties’ interests.
• Consider opening a short probate (limited administration) if title is in the deceased’s name alone — it can make substitution and a clean partition easier.
• Keep careful records of service (personal, certified mail, or publication) and file proof with the court.
• Because partition actions can involve complicated title and family disputes, consult an attorney experienced with New Hampshire real estate and probate practice — especially if heirs are numerous, unknown, or contested.

Disclaimer

This information is educational only and is not legal advice. It explains general New Hampshire procedures for including heirs in partition cases. For advice about your specific situation, consult a licensed New Hampshire attorney.