When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court, prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party.

Annotations

A will that contains a “no contest” provision forecloses any partition action after a probate court enters its final order closing the estate. So a devisee’s partition action after the estate has been closed cannot be a will contest. Martin v. Ullsperger, 284 Neb. 526, 822 N.W.2d 382 (2012).

Pursuant to this section, the words “partition” and “partitioned” mean partition in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

The last sentence of this section addresses the sale of property that cannot be partitioned in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

The Nebraska Supreme Court has long expressed a preference for partition in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

Under this section, the court is to follow the procedures for partition in civil actions. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

If a county court finds that certain property is subject to partition, it may direct the personal representative to sell the property. The personal representative is to perform the duties and responsibilities otherwise incumbent upon a referee. In re Estate of Failla, 278 Neb. 770, 773 N.W.2d 793 (2009).

If the court finds that the real estate in question cannot be partitioned without prejudice or conveniently allotted to one person, it shall direct the personal representative to sell the property and perform the other duties that would otherwise be those of a referee. In re Estate of Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).

This section gives the county court exclusive original jurisdiction over actions to partition or sell real estate in a decedent's estate during the pendency of estate proceedings. In re Estate of Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).