Including heirs of a deceased sibling in a North Dakota partition action — Detailed FAQ

Short answer: Yes. If a co-owner (for example, your sibling) died owning an interest in property that is the subject of a partition action, the deceased person’s interest survives and belongs to their heirs or estate. Those heirs (or the personal representative of the estate) generally must be joined in the partition case so the court can divide or sell the property and distribute the proceeds correctly under North Dakota law.

Detailed answer — how this works in North Dakota

A partition action asks the court to divide or sell real property when co-owners cannot agree. Under North Dakota law, the court must include all persons who have a legal interest in the property so the final order binds everyone and clears title. If a co-owner died before or during the case, that co-owner’s share does not disappear. The share passes according to the deceased person’s estate plan or, if there is no will, under North Dakota’s intestate succession rules. To resolve all interests, you must bring those successors or the estate into the partition action.

Two common ways the deceased co-owner’s interest appears in a partition case:

Heirs or devisees — If the decedent’s interest passed directly to named beneficiaries or intestate heirs, those people are necessary parties.
Estate representative — If the decedent’s estate is opened in probate, the personal representative (executor/administrator) can be substituted or joined to represent the decedent’s interest.

See North Dakota statutes and court rules on partition and joinder for guidance. The North Dakota Century Code covers partition matters under Title 32 (see Title 32 overview): https://www.legis.nd.gov/cencode/t32. For rules about joining or substituting parties, consult the North Dakota Rules of Civil Procedure (see Rule 19 on required joinder and Rule 25 on substitution): https://www.ndcourts.gov/rules/nd-rules-civ-pro. For descent and distribution (how interests pass without a will), see the North Dakota Century Code on descent and distribution (Title 30): https://www.legis.nd.gov/cencode/t30p1.

Why joinder matters

If you do not join the heirs or the estate, the court may not be able to conclude the action in a way that affects the missing interests. A partition judgment that does not include necessary parties can be vulnerable to later challenges and may not clear title or distribute proceeds correctly.

Step-by-step: how to add heirs of a deceased sibling to a partition action in North Dakota

Identify the deceased co-owner’s legal successor(s).

Check whether the decedent left a will, whether a probate is open, and who the heirs are under intestate rules. Sources: county probate records, death certificate, or a title search that shows how the decedent’s interest transferred.
Decide whether to join the personal representative or the heirs directly.

If the estate has an appointed personal representative, it is usually easiest to name the personal representative as a party because the representative can bind the estate for purposes of the partition. If no probate is opened and heirs are known, you may name the heirs individually.
Amend your complaint or file a motion to join the necessary parties.

File an amended complaint adding the heirs or the personal representative as defendants (or plaintiffs/cross-claimants as needed). Cite the reason for joinder (they hold an interest). Under the North Dakota Rules of Civil Procedure, the court can order joinder when necessary to resolve the entire controversy (see Rule 19).
Serve the added parties properly.

Serve heirs or the personal representative in accordance with North Dakota procedure. If you do not know the heirs’ identities or locations, North Dakota permits service by publication in limited circumstances; the court may also allow appointment of a guardian ad litem or require alternative notice methods.
If heirs are unknown or unlocatable, ask the court for alternative procedures.

When heirs are unknown, you can request service by publication or other notice and the court may appoint a guardian ad litem to protect unknown interests. The court may also require you to provide affidavits showing diligent efforts to locate heirs before permitting publication.
Consider probate first if an estate is needed to clear title.

If the decedent’s interest is significant or if title is clouded, opening a probate estate and obtaining letters testamentary or letters of administration can simplify joining the estate to the partition action. The personal representative can then be substituted or joined.
Follow the court’s procedures for partition once all parties are joined.

After proper joinder and notice, the court will proceed to partition in kind (physical division) if practicable or order sale and division of proceeds. The court’s decree will bind all joined parties and will be recorded to clear title.

Typical court filings and actions you will use

Amended complaint or amended petition (naming heirs or estate representative).
Motion for joinder or motion for substitution under North Dakota Rules of Civil Procedure (e.g., Rule 19, Rule 25).
Affidavit of service or application for service by publication (if heirs unknown).
Short form petition to appoint a guardian ad litem for unknown or unlocated parties (when required).
If necessary, petition to open probate and appointment of a personal representative.

Practical example (hypothetical facts)

Suppose three siblings — Alice, Ben, and Carol — own farm property as tenants in common. Ben dies intestate owning a 1/3 share. Alice wants partition and asks the court to sell the farm. Alice should:

Check whether Ben’s estate is open. If not, find Ben’s heirs (spouse, children, parents, etc.) under North Dakota intestate rules.
If a personal representative exists, file an amended partition complaint naming the personal representative as a party. If no probate exists but heirs are known, name the heirs individually.
Serve the added parties. If an heir cannot be located, ask the court to allow service by publication and appoint a guardian ad litem if necessary.
Once everyone is joined and served, the court can divide or order sale and distribute proceeds according to each party’s share.

When you might not need to add heirs

If the deceased co-owner’s interest was already transferred by deed, survivorship, or other clear legal instrument before the partition, and the new owner is already on title and in the case, you may not need to add heirs. Always confirm title records and obtain legal advice before assuming that step is unnecessary.

Helpful links (North Dakota)

North Dakota Century Code — Title 32 (real property and partition topics): https://www.legis.nd.gov/cencode/t32
North Dakota Rules of Civil Procedure (joinder and substitution rules): https://www.ndcourts.gov/rules/nd-rules-civ-pro
North Dakota Century Code — Descent and Distribution (how interests pass without a will): https://www.legis.nd.gov/cencode/t30p1

Helpful Hints

Start by obtaining a current title report and the decedent’s death certificate. These documents reveal whether the interest already transferred.
Search county probate records. If an estate is open, contact the personal representative or their attorney to coordinate joinder.
If heirs are unknown, document your good-faith efforts to locate them — courts expect proof before permitting service by publication.
Consider opening probate first if the estate has multiple creditors or complex claims; a personal representative simplifies litigation involving estate assets.
File an amended complaint with the court early. Delays can complicate service and may extend the litigation timeline.
Keep careful records of service and filings. The final partition judgment will rely on proper notice to all interested parties.
If the matter is contested or complex, consult a North Dakota attorney experienced in real property and probate to avoid procedural mistakes that can invalidate a partition decree.

Disclaimer: This article provides general information about North Dakota law and common procedures. It does not constitute legal advice and does not create an attorney-client relationship. For advice about a specific situation — including drafting pleadings, service issues, or probate coordination — consult a licensed North Dakota attorney.