FAQ: Filing a Partition Action or Petition for Sale of Inherited Real Estate in South Carolina When Some Heirs Are Minors

Short answer: In South Carolina you can ask a court to partition (divide) or order the sale of jointly owned inherited real estate even when some heirs are minors. You must file in the proper court (usually circuit court), name all owners and interested parties, and make special arrangements to protect minor heirs — typically by getting a guardian or a guardian ad litem appointed and asking the court to approve any sale or distribution of the minor’s share.

Detailed answer — step‑by‑step guide

1. Figure out how title passed and who the parties are

Start by determining whether the property passed by will, by intestacy (no will), or outside probate (e.g., joint tenancy or transfer-on-death). If the property is still in the decedent’s name, probate may need to be opened and a personal representative or administrator appointed. If title already lists multiple owners (co‑owners or tenants in common), any co‑owner may generally bring a partition action.

2. Choose the right legal action and the right court

In South Carolina, partition actions and petitions for sale of property are typically filed in the circuit court where the land is located. A partition action asks the court to physically divide the land when practical; if the property cannot be divided fairly, the court can order sale and divide proceeds. If the heirs prefer sale rather than physical division, the court can order sale instead of partition.

For general guidance on civil actions and related statutes see the South Carolina Code Title covering civil procedure and remedies: South Carolina Code, Title 15. For probate, guardianship, and administration topics see: South Carolina Code, Title 62 (Wills, Trusts, and Administration).

3. How minors change the process

Minors cannot usually bring suit on their own or legally convey real property. When a minor is an owner or heir, the court must protect the minor’s interest. That protection usually takes one or both of these forms:

Guardian ad litem (GAL) or next friend in the pending partition case: The court will appoint a GAL or allow a next friend to represent the minor’s interests for purposes of the litigation. The GAL looks out for the minor’s legal interests in the partition or sale proceedings.
Guardian of the minor’s estate or conservator (probate or family court): If proceeds from a sale are to be paid to a minor, a guardian of the estate (sometimes appointed in probate or through family court) typically receives and manages the funds until the minor reaches majority or until the court orders distribution.

Which appointment the court requires depends on the facts: whether the minor already has a court‑appointed guardian, whether the proceeding will involve a sale and interim receipt of money, and the judge’s view of what best protects the minor. Courts often require a bond or court supervision for any guardian handling money.

4. Practical steps to file

Prepare the complaint or petition: identify each owner or heir by name and address, describe the property (legal description), explain how title is held, and request partition or sale. Attach a copy of the decedent’s will (if any) and any probate papers if relevant.
Name minors and indicate ages: expressly identify any heirs who are under 18 and include a request for the court to appoint a guardian ad litem or to recognize an existing guardian.
Serve process correctly: minors are usually served through their guardian or next friend. The court clerk or sheriff will advise proper service methods for minors and unknown owners.
Ask the court for orders protecting minor interests: for example, require court approval of sale terms, require proceeds to be paid to a guardian of the estate or to the clerk of court, and require a bond or secure investment for funds held for a minor.
Attend any hearing on appointing a commissioner or ordering sale: the court commonly appoints a commissioner or auctioneer to carry out a sale and requires notice and appraisal steps before sale.
Obtain court approval of sale and distribution: the court will review sale procedures and approve distribution of net proceeds according to ownership shares. For minors the court will ensure proper receipt and accounting for the minor’s share.

5. How proceeds for a minor are handled

A court will not simply hand cash to someone to hold for a minor without oversight. Typical options include:

Pay the minor’s share into the clerk of court or an escrow account supervised by the court.
Pay the proceeds to a court‑appointed guardian of the minor’s estate who must account for use and investments and usually post a bond.
Place funds into an interest‑bearing account or conservatorship until the minor reaches majority or until the court directs distribution.

6. Timing, costs and common delays

Expect time added when minors are involved: appointment of a guardian ad litem, potential guardianship or conservatorship proceedings, bonded guardians, and additional court approvals all add steps. Costs may increase because of the need for appraisal, possible guardian bonds, counsel for the minor, and extra hearings. The court’s priority is protecting the minor’s financial interest, and judges will not shortcut those protections for speed.

7. Who should you involve?

Consider working with a probate or real estate litigation attorney experienced with partition actions and minors. You may also need a probate attorney or family court counsel to establish a guardianship or to handle receipts for a minor’s share. If parties agree to sell, a mediated settlement allocating sale proceeds and handling minors’ shares can save time, but it generally still requires court approval when minors are involved.

Helpful hints

Start by locating the deed, will, and any probate file to confirm how ownership passed.
Identify all heirs and record current addresses — correct service is required for minors as well as adults.
Expect the court to require a guardian ad litem or guardian of the estate for minors; plan for that step and any bond/costs it triggers.
If the family can agree, prepare a written settlement allocating sale proceeds and a plan for holding the minors’ money — then present it to the court for approval to speed the process.
Keep careful records and receipts for any funds held for a minor; the court will expect documentation of how the money was protected or spent.
Ask the court whether proceeds should be paid to the clerk of court, a guardian, or placed in supervised investments. Different judges or counties may prefer different procedures.
Consider tax consequences of sale; consult a tax advisor about capital gains and basis rules for inherited property.

Key South Carolina resources

South Carolina Code, Title 15 (civil remedies and actions): https://www.scstatehouse.gov/code/title15.php
South Carolina Code, Title 62 (wills, trusts, and administration — probate & guardianship topics): https://www.scstatehouse.gov/code/title62.php
South Carolina Judicial Branch (court locations, forms, and procedures): https://www.sccourts.org

When to talk to an attorney

Talk with an attorney if:

You are unsure how title passed or who is owed what.
Some heirs are minors and you need guidance about guardianships or court protections.
Heirs disagree about sale versus partition, or one owner refuses to cooperate.
Large sums are involved and you want to ensure proper handling and tax planning.

Disclaimer: This article is for general informational purposes only and is not legal advice. Laws and court procedures change. Consult a licensed South Carolina attorney to get advice tailored to your specific situation.