How to proceed with a partition or petition for sale of inherited real estate in Texas when some heirs are minors

Short answer: In Texas you can ask a court to partition (divide) or order the sale of jointly owned inherited real estate, but when one or more heirs are minors the court must protect their interests. That typically means naming them as parties, having a guardian or guardian ad litem represent their interests, getting court approval for any sale or distribution, and safeguarding the minors’ share (for example, by placing proceeds in a protected account or under court-supervised guardianship). This article explains the typical steps, legal authorities you will encounter, and practical tips for moving forward.

Detailed Answer

1. Decide whether you want partition in kind or partition by sale

Texas law allows a cotenant to file a partition action to divide property physically (partition in kind) or, if in-kind division is impractical or inequitable, to sell the property and divide the proceeds. The Texas Property Code governs partition actions—see Chapter 23 for the framework and remedies a court can order. For statutory text, see: Texas Property Code, Chapter 23.

2. Figure out the title, probate status, and who must be named

Determine whether title passed by will, intestacy, or by operation of law (joint tenancy, survivorship deed, etc.). If the estate is still in probate, some steps might proceed through the probate court rather than a separate partition suit.
Name every person with a present interest in the property (all cotenants/owners). Minors must be named as parties just like adults.

3. How minors are represented in a Texas partition action

Because minors lack legal capacity to protect their own interests in litigation, the court will require someone to represent them. There are two common ways this happens:

Guardian of the estate (probate guardianship): If the minor inherited through probate and needs ongoing management of money/property, a probate court can appoint a guardian of the minor’s estate under Texas guardianship procedures. The guardian can pursue or defend claims on the minor’s behalf. If probate is already open, coordinate with the probate court handling the estate.
Guardian ad litem or next friend in the partition case: In many civil cases (including partition suits), the court will appoint a guardian ad litem to represent the minor’s litigation interests. The Texas Rules of Civil Procedure address appointment of guardians ad litem for persons under legal disability; see the rules overview at the Texas judicial rules page: Texas Rules of Civil Procedure. The judge may also allow a parent or other adult to appear as “next friend” if appropriate.

4. Typical contents of a partition or petition for sale

A petition for partition/sale normally asks the court to:

Identify the cotenants and describe the property;
State each cotenant’s claimed share;
Ask the court to divide the property in kind or appoint a commissioner to sell it and divide proceeds;
Ask the court to appoint a guardian ad litem for any minor parties (if one is not already appointed); and
Ask for accounting, credits for improvements or mortgages, and allocation of costs and expenses.

5. Process steps and court protections for minors

File the petition in the district or county court that has jurisdiction where the property is located.
Serve all parties, including minors (served on their guardian or as the court directs).
If no guardian for the minor exists, the court commonly appoints a guardian ad litem (or may require a probate guardian) so the minor’s interests are protected in negotiations and any proposed sale.
If the court orders a sale, the sale is usually conducted by a court-appointed commissioner. The court will supervise notice and bidding procedures.
Before distributing proceeds to a minor, the court will typically require additional safeguards: approval of the distribution, appointment of a guardian or conservator for the proceeds, a blocked or court-supervised account, or the posting of bonds. The court’s goal is to prevent misuse of a minor’s share.
The court will review any compromise or settlement affecting a minor; many courts require detailed accounting and evidence that the settlement is fair and in the minor’s best interest.

6. Practical timeline, costs, and outcomes

A partition action can take months to more than a year depending on complexity, valuation disputes, whether minors require probate guardianship, and whether the parties settle. Costs include court fees, attorney fees (the court can award fees in some circumstances), costs for valuations or appraisals, and commissioner fees. Expect additional hearings and court oversight if minors are involved because the court must approve distributions affecting them.

7. When probate is already open

If the property passed through probate and a guardian for a minor heir has already been appointed, coordinate the partition or sale request with the probate court. Sometimes the probate court will handle sale/approval of the minor’s interest rather than a separate partition suit. If no probate guardianship exists, the partition court still typically will appoint a guardian ad litem or require probate actions to protect the minor’s financial interest.

8. Key legal authority to consult

Partition statute and court remedies: Texas Property Code, Chapter 23.
Rules and practices about guardian ad litem appointments: Texas Rules of Civil Procedure (guardian ad litem rules).

Helpful Hints

Start by getting a complete title history, death certificates, wills, probate filings, deeds, and a list of all heirs with current addresses.
If minors are involved, consider opening a probate guardianship for the minor’s estate before or during the partition case so a guardian can manage the minor’s funds.
Get a professional appraisal early to reduce disputes over value and help the court decide whether partition in kind is feasible.
Expect the court to require special protections for minors’ proceeds (court approval of sale, guardian oversight, blocked accounts, or bonds).
Communicate with all cotenants early; many partition suits are costly and adversarial—settlement or voluntary buyouts often save time and expense.
Document any contributions, loans, or repairs to the property. The court may give credits or adjust shares for payments or improvements made by one cotenant.
Consult an attorney experienced in Texas partition and probate matters. An attorney can draft the petition, request any guardian ad litem appointments, coordinate with probate court if needed, and protect the minors’ statutory rights.

Disclaimer: This article is educational and informational only and does not create an attorney-client relationship. It is not legal advice. Laws change and the facts of each situation matter. Consult a licensed Texas attorney to get advice tailored to your situation.