Is Partition suit appropriate or another method better route?

What is the name of your state (only U.S. law)? Virginia

A parent of mine lives in Virginia. They purchased a home with someone who is now deceased. They own the home as tenants in common. He passed away without a will. He has 6 living siblings in multiple countries (1 in US, 1 in CA, and three others in the Middle East--no parents or children). My parent has been paying the mortgage for a couple of years, but cannot pay the taxes (they have been paying their 1/2, but deceased tax bill continues to grow). My parent would like to sell the house or do what is needed to become legally unattached to the deceased person. Can they do this using a partition suit. Regarding the estate, no will as mentioned and none of the siblings want to pursue probate. Effectively, nothing is happening and my parent can't keep up will all of the bills, but would like to get their half of the equity out of the house. Any advice on this situation would be enormously appreciated!

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For an attorney's advice

I know that the situation is complicated and we will need an attorney, but I'm hoping that someone (an attorney knowledgeable in this area) will be able to provide me with some advice. Most notably, is a partition suit the way to go or what might be better. Additionally, can a partition suit solve the problem my parent has even though the "other side" is a deceased person, without a will, and on who's behalf no one is taking it to probate?

My initial reaction to your question regarding partition was to discourage it. The reason being that in many states (including mine) the only course the court can take is to order the commonly owned property sold by the sheriff at a public auction.

However, that isn’t the case under Virginia law. The court has other and more equitable options.

I will briefly explain those options with the understanding that it is offered for general information purposes only. You will definitely need the services of a Virginia based attorney fully acquainted with them.

Under Section § 8.01-83 Code of Virginia the court has the option in lieu of partition and sale:

“to allot to one or more of the co-tenants who will accept the entire parcel and to pay to the other co-tenant(s) such sums of money as their interests therein may entitled them to”.

Also, under those statutes the court also has authority to have the property sold (not by a forced public auction) and the proceeds equitably divided between the respective owners.

But I don’t know just how those processes are implemented. It is not made clear from the statutes. And that is why you must consult with some that does know.
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But there are other complications here as well. Meaning, the death of the other co-owner and the fact that as you say, his or her estate has never been probated and his or her interest in the home distributed.

If that is so, then the people that your refer to as heirs are just that. They are inchoate owners, but not record owners.

The point is that even if they all agreed to market the property, they couldn’t pass marketable title to the home. Nor could you purchase the other half of the property from them. That title sits in abeyance in the deceased’s owner’s estate.

Inasmuch as none of the heirs have expressed any intention to intend to move to probate the estate, what your attorney might recommend is that you as an interested party petition to have it probated.

It is truly a complicated mess. But one that can readily be anticipated when people make the huge mistake of taking title to land in cotenancy.

I wish you luck.

Thank you for your comments on this situation. I guess the other option is for my parent to walk away from the home and their half of the equity (their half is 50K) and let the bank sort it out. Difficult as the 50K is all they have and they are elderly and not ever going to see that kind of money again. It is a mess and I wish this had never happened, but now I'm trying to figure out how to help them the best I can. I don't know what kind of legal mess "walking away" would cause them. Do you know how long a partition suit would take?

Understand that I don’t practice law in Virginia. My shingle hangs in a bailiwick several watersheds and mountain ranges removed. (Although my ancestors were among the first settlers of those tidal lands.)

Anyhow, It would be foolish in my mind to walk away from that much investment without at least first talking to a Virginia attorney who can answer your questions.

A major one being who are to be named as the respondents in a partition action!

But I’m confident that the right attorney would figure someway under local law that, if not a full scale probate, that a specially appointed administrator could be had to represent the estate for this limited purpose.

Also, if there is enough equity in the home the right attorney might be willing to defer some of his fees. Where there is a will there is a way, pal

Good luck

I am going to try to digest what you have said and see if I can understand your response. Thanks to you for helping me in trying to guide my dear parent in a way that moves them to a resolution in this situation. Appreciate your unsolicited help and can't tell you how much I appreciate your advice!!! What type of lawyer should we seek...a real estate lawyer (for the partition) or a probate/estate lawyer? How could we find one that is skilled in the area that we need? It seems like we need a fairly skilled attorney for this situation. Other than the equity in the home, my parent doesn't have a dime, so I'm not sure how they would pay for much of an attorney bill if they aren't able to access the equity in the home.

follow up to partition suit question / Latigo

I hope that the previous poster Latigo, or someone knowledgeable in this area can guide me in what route and/or type of attorney (real estate or one dealing with estate law) would be our best option to work at a resolution for this problem. Thanks in advance!