Can heirs of a deceased sibling be included in the partition action, and how do I add them? (WI) | Wisconsin Partition Actions

Detailed answer — Who must be in a Wisconsin partition case and how to add heirs of a deceased co‑owner

When one co‑owner of real property dies, that person’s ownership interest does not simply disappear. Under Wisconsin law a deceased owner’s interest either passes immediately to a surviving joint tenant (if the property was held as a joint tenancy with right of survivorship) or it becomes part of the decedent’s probate estate and belongs to the decedent’s heirs or devisees (if the property was held as a tenancy in common or if survivorship did not apply). A partition action seeks to divide the property (or force sale and split the proceeds) among all persons who hold a present legal or equitable interest in the land. To obtain a complete and binding partition, you must include all persons who have a present interest in the property.

Key Wisconsin statutory authority on partition and who may be joined is in the partition statutes. See Wisconsin’s partition chapter for the governing rules: Wis. Stat. ch. 842 (Partition). The civil procedure rules that control service by publication (used when heirs are unknown or cannot be located) are in the civil procedure chapter: Wis. Stat. § 801.11 (Service by publication).

Step 1 — Figure out whether the decedent’s interest must be included

If the decedent was a joint tenant with right of survivorship, the surviving joint tenant(s) normally receive the interest automatically and there is no separate heir interest to add. Check the deed language and the chain of title.
If the decedent owned as a tenant in common (or the deed does not create survivorship), the decedent’s interest passes to heirs or devisees. Those heirs or devisees are parties whose shares must be accounted for in the partition.
If the decedent died leaving a will or while a probate estate is open, the personal representative (executor/administrator) will often be the person who can represent the estate’s interest in a partition until distributions are made.

Step 2 — Identify the heirs, devisees, or personal representative

Search county probate records for estate filings and for appointment of a personal representative. If a personal representative has been appointed, that representative is usually the correct party to join (or to substitute) for the decedent’s interest during probate.
If no probate been opened, identify heirs under Wisconsin intestacy rules (close relatives such as spouse, children, parents, siblings). If you cannot locate heirs, the court allows alternate service methods (publication) and appointment of a guardian ad litem for unknown or minor parties.

Step 3 — Add the heirs or estate to the partition action

There are common procedural steps used in Wisconsin:

File an amended complaint or a motion to join additional parties that names the heirs or the personal representative of the decedent’s estate. Attach a copy of the decedent’s death certificate and any deed, probate filings, or title documents you used to identify the decedent’s interest.
If a personal representative is already appointed in probate, serve that representative with the amended complaint. The representative can accept service and defend or enter an appearance for the estate’s interest.
If heirs are known by name, serve them following Wisconsin civil‑procedure service rules (personal service or certified mail as allowed). If heirs are minors or legally incompetent, ask the court to appoint a guardian ad litem to represent their interests in the partition.
If some heirs cannot be located, ask the court for service by publication under Wis. Stat. § 801.11 so the court can obtain jurisdiction over unknown or absent heirs. The court may require a sworn affidavit that you used reasonable diligence to locate missing heirs before allowing publication.
If an heir later appears claiming an interest, the court may allow joinder or substitution under the applicable civil rules so the final partition judgment binds that person as to the portion of the estate determined by the court.

What a court will look for

The court wants to know:

Who currently holds legal title.
Whether the decedent’s interest has passed by survivorship or by probate.
That parties with a present legal or equitable interest have been given notice in a manner the court approves (personal service, certified mail, or publication where necessary).

Common outcomes and effects

A partition judgment will divide the property or order a sale and distribute proceeds among all parties whose interests were properly before the court.
If someone with a rightful interest was not joined and did not receive proper notice, the judgment can be vulnerable to later challenge. That is why careful joinder and service matter.
Where the estate is represented by a personal representative, courts often allow the representative to defend the estate’s share and then the estate may later distribute proceeds to heirs under probate rules.

Practical examples (hypotheticals)

Example A — Tenant in common: Alice and Bob own a lot as tenants in common. Bob dies intestate leaving two children. A partition action filed by Alice must name Bob’s heirs (the children) or Bob’s personal representative so the court can divide or sell the property and distribute Bob’s share.

Example B — Joint tenancy: Carol and Dan hold property as joint tenants with right of survivorship. Dan dies. Carol’s interest becomes sole by survivorship; no heirs of Dan must be added because the joint tenancy passed the interest automatically.

Statute references and where to read more

Partition statutes — Wisconsin Statutes, chapter 842 (rules governing partition actions): https://docs.legis.wisconsin.gov/statutes/statutes/842.
Service by publication (used when heirs cannot be located) — see Wis. Stat. § 801.11: https://docs.legis.wisconsin.gov/statutes/statutes/801/11.

Bottom line: Yes — heirs of a deceased sibling who hold the decedent’s interest must be included in a Wisconsin partition action unless the interest passed by survivorship. You add them by identifying the heir(s) or the estate’s personal representative, amending the complaint to join those parties, and serving them in a court‑approved way (personal service, certified mail, or publication if heirs are unknown). Courts commonly appoint guardians ad litem for minors or incompetent persons and allow a personal representative to defend an estate’s interest during probate.

Disclaimer

This article is an educational summary of general Wisconsin law and procedure. It is not legal advice, does not create an attorney‑client relationship, and may not cover unique facts or recent law changes. For help applying these rules to your situation, consult a licensed Wisconsin attorney experienced in real property and probate/estate matters.

Helpful hints

Begin with a title search and death certificate — that often shows whether the decedent’s interest passed by survivorship or belongs to the estate.
Check county probate filings for an opened estate and an appointed personal representative before naming individual heirs.
Document your efforts to locate missing heirs — courts require proof of diligence before allowing service by publication.
If minors or incapacitated persons may inherit, request appointment of a guardian ad litem to protect their interests in the partition.
Consider asking the court to stay the partition until probate appoints a personal representative if probate is imminent; that can simplify party joinder.
Be cautious about deadlines — failure to join or properly serve heirs can produce a voidable judgment later on.
If the title shows “joint tenants” or contains survivorship language, get a copy of the deed; survivorship language controls and may eliminate the need to add heirs.
When in doubt, a short consultation with a Wisconsin real property or probate attorney can save time and reduce the risk of a defective partition ruling.