Detailed answer

This section explains the typical court process used in West Virginia when one co-owner of real property has been adjudicated incompetent and a guardian has been appointed for that person’s estate or person. The goal is to explain how a partition action works, who represents the incompetent co-owner, and how the court protects the ward’s property interests.

1. Who can file and where to file

A partition action is usually filed by a co-owner who wants to divide jointly owned real estate or force a sale and division of proceeds. In West Virginia, the action is filed in the circuit court for the county where the property is located. The petitioner names all co-owners as defendants, including the protected person who has a guardian.

2. Serving the ward and the guardian

When a co-owner is under a guardianship, service is made on the guardian (or conservator) who is the ward’s legal representative for property matters. The guardian steps into the ward’s place for litigation involving estate or property interests, so the guardian must receive notice and an opportunity to respond. The guardian’s written authority or the court order appointing the guardian will typically be part of the record to show the guardian’s authority to act.

3. Guardian’s duties and court oversight

The guardian has a fiduciary duty to act in the ward’s best interest. That duty includes defending or prosecuting claims affecting the ward’s real estate and seeking court approval for major transactions when required by statute or the guardianship order. The guardian must account for actions taken on the ward’s behalf and may need prior approval from the guardianship court for sales or other transfers of the ward’s property.

4. Appointment of a guardian ad litem or other protector for the ward

Because a partition action directly affects property rights, the circuit court handling the partition may appoint a guardian ad litem (GAL) or other attorney to represent the ward’s interests specifically for the partition case if the court believes additional independent representation is needed. The GAL’s role is to ensure the ward’s interests are independently evaluated and protected in the partition proceeding.

5. How the court decides whether to partition in kind or order a sale

The court evaluates whether the property can be fairly divided (partition in kind) without undue prejudice. If an in-kind division is practicable and equitable, the court may order it. If division is not practical or would substantially impair value, the court may order the property sold and direct how sale proceeds will be divided among co-owners. The court weighs factors such as physical layout, economics, and fairness to the ward and other owners.

6. Use of sale proceeds and protections for the ward

If the court orders a sale, the ward’s share of the proceeds is held for the ward. The guardian will usually be responsible for receiving and safeguarding the ward’s share and may need the guardian-court’s approval to invest or spend the funds. The guardian must provide accountings and follow any statutory rules for handling ward property.

7. When the guardian objects or cannot act

If the guardian objects to the partition or to a proposed sale, the guardian will present arguments (and evidence) to the partition court. If the guardian refuses or neglects to protect the ward’s interest, interested parties can petition the guardianship court to compel the guardian to act or to remove or replace the guardian. The partition court may also appoint a GAL to represent the ward’s position in the partition case.

8. Final decree and accounting

Once the partition decree is entered (division in kind or sale and distribution), the court’s decree governs title and distribution. The guardian must follow the decree and provide the guardianship court and interested parties with required accountings and receipts, especially when ward funds change hands.

Relevant West Virginia law and resources

Key areas of law relevant to these issues include West Virginia statutes and court rules that govern guardianships, fiduciary powers and duties, and civil actions affecting real property. For statutory text and the most current rules, consult the West Virginia Code and the West Virginia Judiciary resources:

• West Virginia Code, main site: https://code.wvlegislature.gov/
• West Virginia Judiciary (information on probate, guardianship, and court contacts): https://www.courtswv.gov/

If you need statute numbers or precise procedure language, an attorney or the county clerk can point you to the specific guardianship and real property provisions that apply to your case.

Helpful hints

• Confirm who is the court-appointed guardian and obtain a certified copy of the guardianship order before taking action. That order shows the guardian’s authority and any limits on their power.
• File the partition in the circuit court where the property is located. The clerk can tell you which documents to serve on the guardian and how to document service.
• Expect the court to protect the ward’s interest — the court may require a guardian ad litem or additional proof to ensure fairness for the incompetent co-owner.
• If the guardian plans to agree to a sale or division that affects the ward’s share, the guardian may need prior approval from the guardianship court; ask for clarification early to avoid delays.
• Keep clear financial records. The guardian must account for any proceeds received on behalf of the ward. Receipts, bank statements, and court approvals are important.
• If the guardian refuses to act or takes actions you believe harm the ward, you can petition either the guardianship court (to remove or supervise the guardian) or the partition court (to seek appointment of a GAL). Consult an attorney for options.
• Talk to a West Virginia attorney early. Partition and guardianship intersecting can be procedurally complex; local counsel can advise on timelines, filings, and statutory requirements.