Detailed Answer

Short answer: The petitioners in a West Virginia partition lawsuit should be the person or persons who hold a present legal interest in the property and who ask the court to divide or sell it. That typically means the record owners (co-owners) who want partition; it can include multiple co-owners acting together. When someone files on behalf of an estate, trust, minor, or incapacitated person, the filer must show and list the correct legal capacity (for example, “Jane Doe, as Executor of the Estate of John Doe”).

Who belongs on the plaintiff side (petitioners)?

In West Virginia, the petitioners are the parties who initiate the partition action because they own a current interest in the property and seek a judicial division or sale. Common examples:

One co-owner who wants the court to force a sale or to divide the property.
Two or more co-owners who agree and file together as co-petitioners.
An executor or administrator who holds legal title to property of a decedent’s estate and seeks partition on behalf of the estate — listed in the petition in the fiduciary capacity (e.g., “John Smith, Executor of the Estate of Mary Smith”).
A trustee who holds title for a trust and asks for partition — listed with the trustee title (e.g., “ABC Trust, by Trustee Jane Doe”).
A guardian or committee filing on behalf of a minor or an incapacitated person — listed with the protective capacity shown.

Who is not typically a petitioner?

People who only hold a lien, mortgage, or recorded encumbrance usually are respondents (defendants) rather than petitioners. A lender or lienholder may intervene or be named so the court can protect their security interest, but they do not usually start as petitioners unless they also hold an ownership interest.

How to identify who to list

Run a title search or check the county land records to identify all record owners and recorded interests.
Decide who seeks relief. If you personally own the property (as shown by the record), you may file as petitioner. If you represent an estate, trust, minor, or incapacitated person, list your fiduciary capacity and attach proof of your authority.
Name each petitioner using full legal names and list capacities when you act for an entity or fiduciary role. For example: “John Q. Public” (owner) or “Jane E. Trustee, as Trustee of the Jane E. Revocable Trust dated January 1, 2020.”
If multiple owners want partition together, they can join as co-petitioners to streamline the case and present a unified plan to the court.

Who else must be joined as parties?

You must name all known persons with an ownership interest as defendants/respondents so the court can clear title and divide the property appropriately. That includes:

All co-owners (tenants in common or joint tenants).
All recorded lienholders and mortgagees.
Heirs, devisees, or unknown owners — often identified as “unknown heirs of [decedent]” or similar designations when records do not show specific names.

If you fail to join an owner or a necessary party, the court’s orders could later be challenged or fail to clear title.

Special situations

Decedent’s property: If title is still in the decedent’s name, the personal representative or executor typically files as petitioner in the representative capacity and must identify heirs and beneficiaries as respondents.
Trust property: The trustee files as petitioner (or co-petitioner) and must show trustee authority. Include the trust name and trustee’s name.
Minors or incapacitated owners: A guardian or conservator should petition on their behalf, and the court may require appointment of a guardian ad litem to protect the minor’s interests.
Unknown owners: Use appropriate fictitious-party captions (for example, “Unknown Heirs of [Name]”) and follow local rules for service by publication if you cannot find them.

Practical consequences of who you list

Who appears as petitioner affects who the court recognizes as asking for relief and whose rights the court will adjudicate. Listing the correct legal names and capacities helps the court issue an enforceable decree that clears title and protects all parties’ interests. Incorrect or incomplete party designations can delay the case, lead to extra expense, or produce a judgment that a later court will set aside.

How West Virginia courts treat parties

West Virginia procedure requires that persons with an interest in the subject property be made parties so the court can settle rights and distribute proceeds properly. Because procedures and local forms vary, you should confirm county filing and service rules before you file.

When to get legal help

If title records are unclear, if owners are deceased or unknown, if fiduciaries must act, or if disputes between owners may be contentious, consult a West Virginia attorney experienced in real property and partition actions. An attorney can prepare the petition, draft correct party captions, perform the necessary title work, and arrange service and notice to all interested parties.

Disclaimer

This article is for informational purposes only and does not create an attorney-client relationship. It is not legal advice. For advice about your specific situation in West Virginia, consult a licensed attorney.

Helpful Hints

Before filing, run a current title search at the county clerk’s office to confirm legal owners and recorded liens.
List each petitioner by full legal name and show the capacity when acting for an estate, trust, guardian, or other fiduciary.
If multiple owners agree, file together as co-petitioners to reduce later disputes about who started the action.
Name and serve all known lienholders and encumbrancers so the court can address their claims.
When owners are deceased or missing, identify them as “unknown heirs” and follow court rules for service by publication if needed.
If minors or incapacitated persons have an interest, arrange for a guardian ad litem to protect their rights.
Keep documentation of your authority if you file as a fiduciary (letters testamentary, trust documents, guardianship papers).
Consider whether a negotiated buyout or voluntary partition in kind avoids litigation costs; courts often prefer in-kind division when practical.