Undivided interests; distribution, partition in kind or by sale,
distribution by total fair market value; appointment of
commissioner
Sec. 11. (a) When two (2) or more distributees are entitled to
distribution of undivided interests in any real or personal property of
the estate, distribution shall be made of undivided interests therein
unless the personal representative or one (1) or more of the
distributees petition the court not later than the hearing on the
petition for final distribution, to make partition thereof. If a petition
is filed, the court, after notice is given to all interested persons as the
court directs, shall proceed to make partition, allot and divide the
property in the same manner as provided by the statutes with respect
to civil actions for partition, so that each party receives property of
a value proportionate to the party's interest in the whole. 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 (1) party. If partition is
made in kind, the court may appoint a commissioner to partition the
property, who shall have the powers and perform the duties of a
commissioner in civil actions for partition, and the court shall have
the same powers with respect to the commissioner's report as in civil
actions. If equal partition cannot be had between the parties without
prejudice to the rights or interests of some, partition may be made in
unequal shares and by awarding judgment for compensation to be
paid by one (1) or more parties to one (1) or more of the others. Any
two (2) or more parties may agree to accept undivided interests. Any
sale under this section shall be conducted and confirmed in the same
manner as other probate sales. The expenses of the partition,
including reasonable compensation to the commissioner, shall be
equitably apportioned by the court among the parties. Each party
must pay the party's own attorney's fees. The amount charged to each
party constitutes a lien on the property allotted to the party.
(b) If a distribution of particular assets of a decedent is to be made
to two (2) or more distributees that are entitled to receive fractional
shares in the assets, the decedent's personal representative may,
under an agreement among the distributees, distribute the particular
assets without distributing to each distributee a pro rata share of each
asset. However, the personal representative shall:
(1) distribute to each distributee a pro rata share of the total fair
market value of all the particular assets as of the date of
distribution; and
(2) divide the assets in a manner that results in a fair and
equitable division among the distributees of any capital gain or
loss on the assets.
(Formerly: Acts 1953, c.112, s.1711.) As amended by P.L.265-1989,
SEC.1.
Last modified: May 27, 2006