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Texas law provides that, in a partition action, the court has the power to sell the property on application of any one or more of the joint owners. The court may also grant money judgments against any or all of the joint owners. This is also true for inherited property. In fact, inherited property is treated differently in Texas. In 2017, the State of Texas adopted the Uniform Partition of Heirs’ Property Act to assist with this. When a person dies without a valid will, this type of action can be used to distribute the deceased person’s property to heirs. But are there differences for partition actions in inherited property cases if they go to the appellate court?

Probate Terminology

What is a Partition Action?

A partition action asks that the court divide the property in a fair manner for the co-owners. The need for partition often arises in situations where the co-owners can no longer get along. This allows a sale of the property to occur and allow the other person to keep whatever money they would have received if they had sold the property before their death (i.e., no probate).

Texas Rules of Civil Procedure, Rule 385

The Rule states that a transcript must be filed within twenty days, or the right to appeal will be lost.

Probate Case: Partition Suit

Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980).

Background & Procedural History: Forced Sale of Property

In a partition suit, the District Court held the parties (Griffin and Wolfe) would have an equal share in the property at hand, ensuring they both owned a percentage, and appointed commissioners to carry out its instruction. Appellants filed their appeal bond and, within sixty days, filed a motion to obtain a time extension on their transcript filing. The Court of Appeals denied their motion under the rationale that Rule 385 applied and Appellants had not met the twenty day requirement for timely filing. The Supreme Court of Texas reversed the Court of Appeals judgment, holding that Appellant’s motion was timely because a partition case involves two judgments, the first of which is appealable as a final judgment. Therefore, the appeal was required to be held to the timeline of an ordinary appeal, which had occurred here.

Main Considerations

Does the case involve interlocutory orders? If so, Texas Rule of Civil Procedure applies, and requires that a transcript be filed within twenty days, or the appellants will forfeit their right to an appeal.


Griffin v. Wolfe shows that partition cases on appeal are governed by the rules of an ordinary appeal, and that motions to extend the time to file a transcript should be accepted if they meet the ordinary rather than the shortened timeline.

A partition action can be brought at any time the land was owned by joint owners. However, the right to partition is not absolute; in some cases, there are other competing considerations that may require you to hire an experienced lawyer to determine whether it is possible to bring a partition action. For example, sales taxes on real property transfers must be paid within six months of the transfer date, so if you are considering purchasing property from a joint owner, you should consult with an experienced tax lawyer before making the purchase.

Do You Need a Probate or Partition Attorney to Settle an Estate in El Paso, Texas?

Have you lost a loved one and have no idea how to proceed? Our local Texas attorneys can help you through the probate process. A good probate attorney will guide you through every step of the process from beginning to end. Hire an experienced probate lawyer in the El Paso metro area or in the surrounding communities. Contact us on our homepage, and don’t forget to ask about our Free 30-minute probate attorney consultation. From first steps to final distribution, we handle the entire probate process for you.

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Related Questions

How do you fight a partition action?

The first step in fighting a partition action is to file a written answer. In this answer, you will want to raise any and all defenses that apply to your case. In Texas, the court must take certain factors into consideration if their are heirs to an estate.

How do you respond to a partition lawsuit?

If a partition lawsuit is filed against you and you wish to avoid a forced sale of your property, it is important to respond quickly and correctly to the lawsuit. If you wait too long to respond, the court may order the sheriff to sell your property, or the sale of the property will be done by a real estate agent in an estate case.

What are the steps in a partition action?

The first step in a partition action is for the person who wishes to file the suit to file a complaint with the court. The complaint must state that there is property that is owned by someone other than the person filing the suit, and that the rightful owner of the property is entitled to have it turned over to them.

Next, a summons will be issued by the court. This summons will be served on all parties named in the complaint. The summons will notify them of the lawsuit and give them a date by which they must respond.

If any of the parties do not respond to the summons, they may be subject to default judgment, which means that they will automatically lose ownership of their share of the property without having their day in court.

Once all parties have responded, each side will present evidence and arguments to support their position before the judge makes a final decision on who should own what portion of the disputed property.

How to win a partition action?

Generally, it is a common desire of an estate to divide the property in equal shares among all the heirs. However, there are times when this goal proves quite difficult to achieve, mostly when one of the heirs does not agree with the proposed partition, or even refuses to participate in it.

The rule of thumb is that if one of the heirs objects to the proposed partition, then the parties involved (the executors, the heirs and the beneficiaries) should be able to reach an agreement. If they do not succeed, there are two possible ways to go forward: through partition by agreement or through partition by litigation.

In partition by agreement, the parties must come up with a mutually acceptable partition plan and file it before the probate judge. On the other hand, partition by litigation is a judicial process which implies that one party files a lawsuit against one or more other parties for an order for partition.

If you find yourself in a situation where you must win a partition action, there are a few things you can do to increase your chances of success. First, try to come to an agreement with the other heirs involved. If you can reach a mutually acceptable partition plan, this will be the quickest and easiest way to resolve the issue. However, if agreement cannot be reached, you may have to resort to partition by litigation. This is a judicial process in which one party files a lawsuit against another or others for an order of partition. Although this may take longer and be more complicated than reaching an agreement, it is still possible to win if you have a strong case. Be sure to consult with an experienced inheritance dispute lawyer who can help you navigate the legal system and give you the best chance of success.

Who pays for partition action?

When a real estate property is left in probate, the executor of the estate can take control of the property and sell it. In some situations, partition action is also available to heirs or beneficiaries. However, part of this efficiency may come at a price…you will have to pay for the partition action.

The executor of the estate is responsible for selling the property and distributing the proceeds to the heirs or beneficiaries. In some cases, the executor may choose to partition the property instead. Partitioning the property means that it will be divided up and sold off separately. The executor will still be responsible for distributing the proceeds from the sale, but he or she will not have to go through the hassle of selling a single piece of property.

Partition action can be a good option for heirs or beneficiaries; however, it is important to keep in mind that you will have to pay for partition action. This is something that you should discuss with your executor before making any decisions.

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