| Wills, trusts and estates |
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| Part of the common law series |
| Wills |
Sections Property disposition |
| Trusts |
Common types Other types
Governing doctrines |
| Estate administration |
| Related topics |
| Other common law areas |
Heirs property, or heirs' property, refers to property that is passed between generations of family members without a will or formal estate strategy. [1] Heir property is commonly viewed as an unstable form of ownership, since co-owners often have limited rights over the property. [2]
Heirs' property is created when the original owner of the home or land dies either without a will or with a basic will that divides their property equally among their descendants. [3] The recorded deed for the real property is typically in the name of the deceased relative. The transfer of ownership to the deceased's heirs is typically recorded during the probate process, but if this is not handled properly it can result in a lack of legal documentation of the next generation of owners, since they informally inherited the property. Many of these owners may not be aware that they are fractional owners. [4]
Heirs' property owners are considered tenants in common. Each fractional owner has equal rights to use and possession of the entire estate, and is equally responsible for taxes and other real property-related expenses. Each heir may transfer their own fractional interest in real property to another heir or outsider, but all must agree to any major decisions about the real property. [3] In this system, the land is held in common. After several generations, it can be difficult to determine who the legal owners are, and the legal owners might not have paid their share of taxes, lived on the land, or helped maintain it. [5]
Each heir can file a partition action, requesting to sell their fractional portion of the undivided whole. This occurs either in kind or by sale. Partition in kind is when a judge physically divides up the land, carving out a portion that corresponds with the size of the share of the one who wants out. Then that owner, now the sole owner of a smaller plot, can use or sell it as they wish. In a partition by sale, the entire plot of land is sold, and the proceeds are split and given to all of the owners, according to their percentage of ownership. [6]
Heirs living on family property may have unspoken agreements with the deceased for them to continue living there, but without an estate plan they do not necessarily have greater legal rights than any other heirs. Heirs cannot sell, mortgage or lease their property without the agreement of all heirs. Changing the legal designation of the property to something other than heirs' property also requires the agreement of all heirs. Locating and contacting all heirs to do so may be difficult, especially if some of them live outside of the country or have not been in contact in years. [7]
Individuals living on heirs property are at an elevated risk of forced sale and eviction, and may be unable to fully benefit from ownership of the land. Heirs have more difficulty farming, qualifying for agriculture loans, and selling agriculture products. Heirs cannot qualify for most rehab programs or secure financing for needed repairs for their heirs property. Heirs may not be able to participate in government programs offered by USDA, HUD, FEMA, and other federal and state agencies. Heirs cannot qualify for loan modifications and other loss mitigation programs when facing foreclosure. Heirs may not be able to qualify for conservation use tax reductions, homestead exemptions or other real property tax exemptions. [8]
Beginning in the 1950's state courts began overriding the stated preference for partition in kind, instead favoring partition by sale. Although more convenient for courts, this had the effect of allowing one fractional owner, often a distant family member without a connection to the land, to force a sale against the wishes of all other owners. This has led to a loss of land ownership, a key way to build familial wealth, especially impacting poor communities and communities of color. [6]
In 2010, the Uniform Law Commission drafted a model Uniform Partition of Heirs Property Act. As of 2023, it has been enacted in twenty-two states and introduced in five more. [9] Among other things, it requires improved procedures for serving notice on heirs and determining fair market value if the co-owners of the property are unable to agree. [10] The UPHPA restructures partition sales with three major reforms: [11]
The 2018 Farm Bill, a piece of omnibus legislation that governs much of agricultural policy in the United States, required the USDA's Farm Service Agency to develop rules allowing heirs' property owners to obtain a farm and tract number, even with cloudy property title. [13]
In October 2022, FEMA developed guidelines for its agents to accept heirs' property documentation to qualify for disaster relief. [14]
Historically, African Americans have more commonly let land become heirs’ property, due to a combination of factors, including a lack of access to government services and a distrust of the legal system brought on by systemic discrimination. [15] The legal costs involved in preparing an estate plan may also deter some families from creating one. [7] According to the United States Department of Agriculture, since 1910, the heir property system has been responsible for African American landowners losing 80% of the farming land owned by previous generations. [5] [16] In 1910, 16 million acres were operated by African American farmers, or 14% of farms. In 2023, under 3 million acres are operated African American farmers and 1.5% of farms. [17]
However, the prevalence of heir property in some communities may also reflect a personal preference for informal, communal management of land. In African-American communities in the South, conflicts resulting from disagreements between heirs may arise common when one or more heirs do not live on the property. For individuals who still live on the property and collectively abide by informal rules of property management, heir property may have fewer risks. [18]
Within the Southern United States, about a third of the land owned by African Americans, amounting to about 3.5 million acres, is held in the heirs property system. [15] Arkansas, Mississippi, Alabama, Georgia, South Carolina, Texas, North Carolina, Virginia, Florida, and Louisiana are the states most affected by the confusion of heirs' property. [5]
In Georgia, a 2017 study by the USDA and the Carl Vinson Institute of Government determined that 11-25% of parcels in every Georgia county are probable heirs property. The total tax-appraised value of probable heirs property in Georgia is more than $34 billion. The negative impacts of heirs property affect families and every aspect of community including the functioning of local government, court systems, state departments, banks, businesses, and nonprofits. [19]
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.
In the United States, a conservation easement is a power invested in a qualified land conservation organization called a "land trust", or a governmental entity to constrain, as to a specified land area, the exercise of rights otherwise held by a landowner so as to achieve certain conservation purposes. It is an interest in real property established by agreement between a landowner and land trust or unit of government. The conservation easement "runs with the land", meaning it is applicable to both present and future owners of the land. The grant of conservation easement, as with any real property interest, is part of the chain of title for the property and is normally recorded in local land records.
Corporate farming is the practice of large-scale agriculture on farms owned or greatly influenced by large companies. This includes corporate ownership of farms and selling of agricultural products, as well as the roles of these companies in influencing agricultural education, research, and public policy through funding initiatives and lobbying efforts.
A family farm is generally understood to be a farm owned and/or operated by a family. It is sometimes considered to be an estate passed down by inheritance.
In property law, title is an intangible construct representing a bundle of rights in (to) a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time under common law, whereas the highest possible form of ownership is a "fee simple absolute", which is without limitations on the land's use.
In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death, when the property rights may revert to the original owner or to another person. The owner of a life estate is called a "life tenant". The person who will take over the rights upon death is said to have a "remainder" interest and is known as a "remainderman".
A deed, commonly, is a legal document that is signed and delivered, especially one regarding the ownership of property or legal rights. More specifically, in common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.
Land trusts are nonprofit organizations which own and manage land, and sometimes waters. There are three common types of land trust, distinguished from one another by the ways in which they are legally structured and by the purposes for which they are organized and operated:
In common law, an estate is a living or deceased person's net worth. It is the sum of a person's assets – the legal rights, interests, and entitlements to property of any kind – less all liabilities at a given time. The issue is of special legal significance on a question of bankruptcy and death of the person.
In common law systems, land tenure, from the French verb "tenir" means "to hold", is the legal regime in which land "owned" by an individual is possessed by someone else who is said to "hold" the land, based on an agreement between both individuals. It determines who can use land, for how long and under what conditions. Tenure may be based both on official laws and policies, and on informal local customs. In other words, land tenure implies a system according to which land is held by an individual or the actual tiller of the land but this person does not have legal ownership. It determines the holder's rights and responsibilities in connection with their holding. The sovereign monarch, known in England as the Crown, held land in its own right. All land holders are either its tenants or sub-tenants. Tenure signifies a legal relationship between tenant and lord, arranging the duties and rights of tenant and lord in relationship to the land. Over history, many different forms of land tenure, i.e., ways of holding land, have been established.
Usufruct is a limited real right found in civil law and mixed jurisdictions that unites the two property interests of usus and fructus:
In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminology for co-owners of real estate is either co-tenants or joint tenants, with the latter phrase signifying a right of survivorship. Most common law jurisdictions recognize tenancies in common and joint tenancies.
A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a concurrent estate into separate portions representing the proportionate interests of the owners of property. It is sometimes described as a forced sale. Under the common law, any owner of property who owns an undivided concurrent interest in land can seek such a division. In some cases, the parties agree to a specific division of the land; if they are unable to do so, the court will determine an appropriate division. A sole owner, or several owners, of a piece of land may partition their land by entering a deed poll.
Foreign ownership refers to the ownership of a portion of a country's assets by individuals who are not citizens of that country or by companies whose headquarters are not in that country.
Hodel v. Irving, 481 U.S. 704 (1987), is a case in which the U.S. Supreme Court held that a statute ordering the escheat of fractional interests in real property which had been bequeathed to members of the Oglala Sioux tribe was an unconstitutional taking which required just compensation.
The term Jim Crow economy applies to a specific set of economic conditions in the United States during the period when the Jim Crow laws were in effect to force racial segregation; however, it should also be taken as an attempt to disentangle the economic ramifications from the politico-legal ramifications of "separate but equal" de jure segregation, to consider how the economic impacts might have persisted beyond the politico-legal ramifications.
The Rule in Shelley's Case is a rule of law that may apply to certain future interests in real property and trusts created in common law jurisdictions. It was applied as early as 1366 in The Provost of Beverly's Case but in its present form is derived from Shelley's Case (1581), in which counsel stated the rule as follows:
when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee simple or in fee tail; that always in such cases, "the heirs" are words of limitation of the estate, not words of purchase.
Agrarian reform and land reform have been a recurring theme of enormous consequence in world history. They are often highly political and have been achieved in many countries.
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, refers to parcels of land and any associated structures which are the property of a person. In order for a structure to be considered part of the real property, it must be integrated with or affixed to the land. This includes crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property, or personalty, was, and continues to be, all property that is not real property.
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