How to Close Heirs’ Property Loopholes
By Lizzie Presser, ProPublica
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The Reels brothers grew up on waterfront land that their great-grandfather bought one generation after slavery. Their family has lived there for more than a century. But because it was passed down without a will, it became heirs’ property, a form of ownership in which descendants inherit an interest, like holding stock in a company. Without a clear title, these landowners are vulnerable to laws that allow speculators and developers to acquire their property. One attorney called heirs’ property “the worst problem you never heard of.” The U.S. Department of Agriculture has recognized it as “the leading cause of Black involuntary land loss.”
Read about the Reels brothers and the risks of heirs’ property.
What can heirs’ property owners do to protect their land?
- Plan for the future.Write a will or prepare a transfer on death deed to help pass a clear title to the next generation.
- Pay your property taxes. Visit your tax assessor’s office and make sure that your taxes are paid and that the address of the person responsible for coordinating bills is up to date.
- Write a family tree. Find out the names on the deed for your land and lay out each generation of heirs that has followed. You can use legal documents from the county, like birth certificates and marriage licenses, as well as family letters, obituaries, information from genealogy websites and records from family reunions.
- Create a paper trail to prove your ownership. If you inherited your property without a will or formal estate proceedings, many states allow for an affidavit of heirship to be filed in the property records to establish your ownership. The rules of when and how an affidavit can be filed vary by state.
- Consolidate the ownership. Consider asking other heirs if they would be willing to transfer their interest in the property to those with the closest ties to the land. In many states, this can be done through a gift deed.
- Manage the co-ownership. Talk to a lawyer you trust about your options, like creating a family LLC or land trust.
- Track your expenses. If you pay for expenses on the property, like improvements to the homes or taxes, keep track of them. If a partition sale is started, you may be able to receive a larger share of the proceeds.
What laws affect heirs’ property owners?
Fourteen states have passed the Uniform Partition of Heirs Property Act, which expands heirs’ rights in partition actions and can help heirs’ property owners gain access to Department of Agriculture programs. States where this has not passed include North Carolina, Mississippi, Florida, Louisiana and Tennessee.
The 2018 Farm Bill created a lending program that, if funded by Congress, would support local organizations providing legal assistance to heirs’ property owners.
About half of the states have Transfer on Death Deed statutes, which allow families to file a simple deed that automatically transfers title to real property upon the owner’s death, without having to go through probate court. The Uniform Real Property Transfer on Death Act has been presented as a model for how such statutes can be written.
What do advocates see as the next steps in helping heirs’ property owners?
Advocates have supported a number of possible legislative initiatives, including:
- Funding to support an increase in the number of legal aid lawyers who help families clear title and make estate plans, and to support local legal education on maintaining clear title.
- Legislation that creates an easier route for heirs’ property owners to access FEMA and home repair programs by allowing for heirship affidavits, a simpler, less costly process than clearing a title through the courts.
- Legislation that creates alternatives to the formal administration of estates when a homeowner dies without a will.
- Legislation that allows heirs’ property owners to access exemptions from property taxes that are available to other homeowners.
