Detailed answer — step-by-step under South Dakota practice

This section explains the practical steps and legal concepts you’ll likely encounter when you pursue a partition of inherited real estate in South Dakota. This is a general guide, not legal advice.

1. Confirm who holds legal title and what shares they own

Start by getting a certified copy of the deed or deeds from the County Register of Deeds for the county where the property sits. If the property passed by a probate proceeding, review the probate file to see how title vested. Make a list of every person or entity with any recorded interest (owners, lienholders). If someone is deceased, determine their heirs or devisees.

2. Try voluntary resolution first

Court actions are more costly than agreements. Send a clear written proposal (certified mail, return receipt) asking for a voluntary partition, sale, or buyout. Document your attempts to contact unresponsive owners — courts expect you to try to resolve matters informally before starting litigation.

3. Choose the right court and prepare the complaint

File a partition complaint in the Circuit Court in the county where the property is located. The complaint should:

• Identify the property (legal description) and current record owners;
• Allege the co-ownership interests (joint tenants, tenants in common, etc.);
• State that partition is requested and whether you seek partition in kind or, if that’s impracticable, sale and division of proceeds;
• Name as defendants all owners and any parties with recorded interests (mortgagees, lienholders);
• Pray for relief such as appointment of a commissioner, sale, accounting of rents/expenses, and distribution.

4. Serve all owners properly — and handle unresponsive owners

All owners must be made parties. South Dakota civil procedure requires notice to defendants. Common service methods include personal service or service by certified mail where allowed. If you cannot locate a co-owner after reasonable efforts, the court may allow service by publication (newspaper) or other substituted service under the court’s rules. If a defendant fails to answer or appear after proper service, you can seek default relief so the case can proceed without their participation.

5. What the court can order

The court has several options:

• Partition in kind: physically divide the land so each owner receives a portion consistent with ownership shares. This is the preferred remedy when the land can be fairly divided without prejudice.
• Partition by sale: if division in kind is impracticable or would significantly harm value, the court can order a sale (public or private) and appoint a commissioner or referee to sell the property and distribute proceeds after paying costs, liens, and outstanding obligations.
• Appointment of a commissioner or referee: the court commonly appoints an impartial official to examine the property, supervise division or sale, and report back to the court.

6. Accounting for rents, taxes, and liens

The court will require an accounting. Owners who occupied the property, collected rents, paid taxes, or made improvements may have claims or credits. Mortgage and lien priorities must be resolved before net proceeds are distributed.

7. Handling minors, incompetents, or unknown heirs

If a co-owner is a minor or legally incapacitated, the court will require representation (guardian ad litem or guardian) to protect that person’s interest. For unknown heirs or missing owners, service by publication and special procedures may be necessary and the court will ensure due process before finally distributing proceeds.

8. Default and judgments against non-responding owners

A properly served owner who does not respond may be defaulted. The court can still proceed and enter a judgment that affects that owner’s interest. In many cases the absent owner remains entitled to proceeds or property allocated by the court, but loses procedural protections if they never appear.

9. Costs, fees, and timeline

Expect filing fees, fees for service, publication costs (if required), possible surveying and appraisal expenses, and commissioner or sheriff sale costs. A straightforward case may take several months; contested matters, complications with unknown heirs, or appeals can extend the timeline significantly.

10. Where to find South Dakota statutes and court resources

South Dakota statutes and court rules govern partition procedure, service, and notice. For statutory text and additional procedural guidance, use the South Dakota Legislature’s codified laws and the South Dakota Unified Judicial System resources:

• South Dakota Codified Laws: https://sdlegislature.gov/Statutes
• South Dakota Unified Judicial System (court forms and local rules): https://ujs.sd.gov

These pages will let you search for statutes and local court rules that control service, publication, partition procedure, and guardianship requirements.

Common obstacles and practical tips

Below are common issues encountered in partition cases and how courts usually handle them:

• Unknown or missing heirs: courts permit service by publication if you can show a diligent search; proceeds may be held in escrow until claims are resolved.
• Disputed ownership claims: a quiet-title claim may be needed alongside partition to clear clouds on title.
• Co-owner opposition: if an owner objects to sale but cannot show that partition in kind is feasible, the court may still order a sale to avoid deadlock.
• Encumbrances: mortgages and liens survive partition; they must be satisfied from sale proceeds or otherwise addressed.

Next practical steps to take right now

1. Get certified copies of recorded deeds and any probate orders affecting the property from the county recorder.
2. Prepare a complete list of all owners and their last-known addresses.
3. Send written settlement proposals and keep records of attempts to reach non-responding owners.
4. Contact the clerk of the Circuit Court in the county where the property is located to learn filing procedures and fees.
5. Consider consulting a South Dakota attorney experienced in real property and partition actions to draft the complaint and handle service and trial steps.

Important: the precise steps and required pleadings will vary depending on facts such as whether the property is under probate administration, whether some heirs are minors, and whether liens exist.

Disclaimer

This article explains general South Dakota procedure for partitioning real property and is for informational purposes only. It is not legal advice. For advice about your specific situation, consult a licensed South Dakota attorney.

Helpful Hints

• Keep a written log of all communications and certified-mail receipts — courts review these when you request substituted service or publication.
• Obtain an appraisal early if you think sale is likely; that helps the court evaluate whether division in kind is feasible.
• If a co-owner lives out of state, serve them according to South Dakota’s rules for nonresident defendants — personal service or permitted substitute methods.
• Watch deadlines: after service, defendants have limited time to respond. Missing response windows can lead to default judgments.
• If liens or taxes exist, identify them before filing so the petition addresses how these will be paid from sale proceeds.
• Contact the county clerk for local filing forms and fee amounts; some counties provide guidance or sample forms for partition actions.
• When in doubt, get legal help early — improper service, missed parties, or procedural errors can delay your case significantly.