What Is a Special Proceeding?

A special proceeding is similar to a civil action, with some slight differences. A special proceeding is initiated with a petition rather than a complaint. Jurisdiction for special proceedings typically lies with the clerk of superior court, unless the proceeding is transferred to a superior court judge. In contrast, other civil cases are heard in front of district or superior court judges.

There are a number of different types of special proceedings. Some of the more common ones include foreclosure, partition, adoption, incompetency, name change, surplus funds, and other estate-related matters.

Partitions arise when there are two or more owners of real property and they cannot agree on what to do with the property. The clerk can order the sale or physical partition of the real property, allowing owners to either share in the proceeds or take possession of the partitioned sections.

Incompetency proceedings involve presenting evidence to have an adult adjudicated incompetent or incapacitated. In addition, the clerk is asked to appoint an individual or an entity to serve as that person’s guardian – someone who can step in and make legal and healthcare decisions on their behalf.

Petitions to determine ownership of surplus funds are filed when the clerk is holding excess funds left over from a foreclosure sale. In addition to filing the petition, the petitioner must show the court who the proper owners of those funds are – such as the original owner of the real property, their heirs, and/or other interested parties.

An example of an estate-related special proceeding is asking the clerk for permission to sell property in order to create assets for an estate that has significant debt. Unless all heirs consent to the sale, the personal representative of the estate must obtain permission from the clerk to sell the property.