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April 24, 2024

Law helps vulnerable heirs property owners — but only if they can afford to use it

April Simpson

Heirs’ property “is family owned land that is jointly owned by descendants of a deceased person whose estate did not clear probate. The descendants, or heirs, have the right to use the property, but they do not have a clear or marketable title to the property since the estate issues remain unresolved,” according to the federal government.

The Uniform Partition of HeirsProperty Act (“UPHPA,” “Uniform Act,” or “Act”) was supposed to be like a strong dose of medicine to the ills of heirs' property which have hindered multi-generational land ownership and family wealth for Black families since Reconstruction. Twenty-one states and Washington, D.C. have enacted the law, first passed in 2011. The act has helped to prevent land loss among low and middle-income families by applying standard practices to partition actions.

But other ills of heirs' property persist. As a result, it is still unclear how effective the Act will be, according to what attorneys, educators, mediators, and academics told the Center for Public Integrity.

“People don’t have money to hire a lawyer, and if you can’t defend the partition action, the UPHPA is not going to help you,” said Fran Miller, senior staff attorney and adjunct faculty member at the Center for Agriculture and Food Systems at Vermont Law School. On top of that, heirs' property practitioners say there is too little awareness of the law among attorneys and judges.

According to the drafters of the Act, the law is intended to protect the generational wealth of property owners who lack the necessary records, resources, and wealth to simply claim ownership over the property. Under the Act, the method for partitioning property is guided by the answer to one question: Can the property be physically divided, equitably and proportional to everyone’s share? If not, it should be sold. The Act inserts other considerations into the process. With heirs’ property, the number of people who can claim ownership of the land multiplith each new generation. That makes heirs' property disputes even harder than other types of dispute resolution, and these disputes involve the complexity of family relationships. Over time, people move and change. Some heirs may be living on the land, while others may be physically and emotionally disconnected from the property. And some may even be totally unaware that they have rights to property.

“All the protections just slow down the process,” said Kara Woods, of the Socially Disadvantaged Farmers and Policy Research Center at Alcorn State University (a historically Black college and university). The Socially Disadvantaged Farmers and Ranchers Policy Research Center is in Mississippi, the state with the highest proportion of Black-owned land. This slow-down actually helps because it gives families time to raise funds or decide what to with the land.

Land ownership and the developmental value of land, critical components of individual and intergenerational wealth, have become a big part of efforts to close the racial wealth gap. Rightful title to land, a priceless commodity in dwindling supply, is usually resolved decisively and in courts based primarily on key legal documents like trusts, wills, and birth, death, and marriage certificates.

Among people of color, those documents are often non-existent because of historical distrust of the court systems, a lack of access to attorneys, and a wealth of common familial relationships documented only by word of mouth or informal agreements. About 75% of Black parents do not have a will; about a third of white parents

In the years since 1910, Black families have lost 80% of the agricultural land owned by previous generations in part because of the problems with the heirs’ property system. Up to one-half of Black-owned land is estimated to be heirs’ property. According to one study, the value of Black land loss is about $326 billion.

Heirs’ property is common in low-income and marginalized communities of any race, including Indigenous peoples in tribal nations, whites in Appalachia, and Latinos in the southwest. It is found in rural areas and also in Brooklyn, Washington, D.C., and other cities experiencing significant gentrification.

Historical reluctance to consult attorneys, distrust of government, racial violence, systemic racism, “all of it contributed mightily to the development of heirs’ property, the prevalence of heirs’ property, and the difficulties of solving it,” Miller said.

Major reforms

The Uniform Act makes three major reforms to partition law, the principle by which property is divided among joint owners based on the particular interests each holds in the property. The three reforms are: a buyout round; the consideration of economic and non-economic factors; and defining the conditions under which property can be sold.

First, the law standardizes uniform criteria for a so-called buyout round, permitting co-owners to purchase one another’s shares. This step encourages ownership to be consolidated. Although there are mechanisms in some state laws that allow co-owners to buy each other’s shares, those mechanisms vary from state to state. If the buyout round is not effective, a court will decide between dividing the property among the heirs or selling it and dividing the proceeds equitably.

Second, a court may consider factors, such as the land’s sentimental value, including “ancestral” attachments, or whether a co-owner would be “harmed” without it. There is a strong preference for dividing the land where possible, called a partition in kind, but dividing the property may be impossible. An article in the suggests the act mandatethat land is partitioned in kind, unless “there is consensus among all located co-tenants that a partition-by-sale is preferred.”

Third, the property should be sold on the open market rather than at a courthouse auction so that it may garner a higher sale price.

Despite the law’s reforms, some attorneys say that ther is still too much latitude for judges to hold that the land can’t be partitioned in kind and must be sold. For example, a “judge doesn’t want to decide who’s going to get the piece by the road versus the piece by the gully,” Alabama attorney Jacy Fisher said.

The best investment

Nearly all 15 attorneys in Georgia and Alabama who were interviewed in a 2021 study prepared for Alcorn’s Socially Disadvantaged Farmers and Ranchers Policy Research Centersaid that heirs’ property owners typically can not afford legal advice or genealogical research. Legal fees to clear title can cost upwards of $10,000, for even a small plot of land, said Woods, of Alcorn’s policy center. The Biden Administration is investing $67 million out of monies appropriated in the American Rescue Plan Act of 2021 to provide low-interest loans for heirs’ property owners to clear title, obtain legal services, engage in mediation, and otherwise resolve ownership issues.

Despite the attention given to partition actions, 18 attorneys interviewed in the Alcorn’s policy center’s study indicated that they are rare in Alabama, Georgia, and Kentucky. The researchers found relatively few partition cases due in part to a lack of accessible data. California, Virginia, Maryland, and Washington, D.C. have expanded the act so that it applies to all partition actions, not just heirs’ property.

North Carolina is among the few southern states where the Act has been introduced but has not passed. Paul Stam, an attorney and former North Carolina state representative, hopes it remains that way. Stam said the bill would “drastically” increase the length of time and cost associated with the partition process. The Act also seeks advantage for one group at the expense of other individuals, by considering sentimental attachments to the property or whether selling it might mean an individual is displaced. “It takes away rights from especially the minority shareholder who may not have been as assertive as their big brother or uncles or aunts or whoever remained in possession,” Stam said. Stam argued that land loss among disadvantaged groups is not a particular problem in North Carolina and is not the worst outcome. “Land is not always the best investment,” Stam said. “A matter of fact, where many, many partitions take place are in land where the property is not worth that much and by selling it, they can put their money into more productive wealth-creating uses.”

Partition actions are more common in waterfront locations that have higher developmental value, such as Hilton Head, S.C., the South Carolina wcountry, and the ast of Alabama, although such actions are increasing in timber-rich areas of Alabama and Georgia. South Carolina is seeing population growth in metropolitan regions outside Charleston, Columbia, and Greenville according to Josh Walden, chief of operations at the Center for Heirs’ Property Preservation in North Charleston. As large companies like Volvo and Boeing bring jobs and infrastructure, they are driving up tax assessments and the value of properties that used to be primarily rural. Joint owners of heirs’ property are then targeted by developers who offer to buy out distant heirs with little to no relationship to the land, Walden said.

Education and diplomacy

Arkansas attorney Furonda Brasfield said ther is a critical need to educate judges and attorneys on the Act, especially when people are pro se litigants. “These people are going to court pro se and they don't know about [the Act] and the judge knows and doesn't want to enforce it, or doesn’t know,” Brasfield said. “People lose their land.”

The Act has strict requirements and deadlines and is not easy to navigate without an attorney. Some attorneys in Alabama, Georgia, and South Carolina, all states where the act has been approved since 2012, had experiences with opposing counsel or judges applying outdated or repealed statutes that had been replaced by the Act. Several attorneys told Public Integrity that judges and opposing counsel often do not understand the cultural significance of the Act, and see it merely as a burden on the litigation process. As a result, attorneys are sharing resources and lawyering tactics in the Heirs’ Property Practitioners Network, a group that has grown to about 80 lawyers over the past year.

In the best of circumstances, families with heirs’ property resolve their disputes in mediation before they go to court, where a judge applies yes-or-no legal principles into a conflict that requires diplomacy.

New York modified the act by requiring court-ordered mediation. The modification is based on similar provisions in North Carolina and Indiana (two states where the act is not law). But mediation can drag on for years and may become more complicated depending on the number of heirs involved and the nature of their relationships. Heirs mediation is unlie traditional mediation because there may be hundreds of parties involved, complicating matters. One attorney explainedhese challenges by contrasting standard mediation with two parties at a table to heirs mediation with 155 interested individuals.

Some organizations, such as the Center for Heirs’ Property Preservation, get to know the heirs through a “family presentation,” a seminar that kicks off by teaching the family about heirs’ property but moves on to addressing family dynamics. During the presentation, attorneys meet with heirs collectively, typically at a community center or church. This process involves going beyond skills learned in law school as it requires attorneys to really get to know the family dynamics involved. It is critical to get to the root of the problems while preserving the family relationship. Sometimes, the underlying issues could be the result of a childhood conflict and have nothing to do with the property.

Stopping the cycle

Heirs’ property practitioners and academic scholars propose several solutions, such as creating comprehensive and thorough estate plans that specify how a property ought to be divided among children. “Stress estate planning to stop the bleeding,” said Ebony Woodruff, director of the Southern University Law Center Agricultural Law Institute for Underserved and Underrepresented Communities. “People can create a will now.”

Wider acceptance of estate planning documents such as heirship affidavits could have an impact. Heirship affidavits establish the legal heirs to a property and can be a cheaper alternative to clearing title. Families need more access to public funding for estate planning and title clearing. Families can stop the cycle of heirs’ property by willing or transferring their interest to another person, buying out each other’s shares, or creating an LLC together.

While the Act may have been intended to stop the loss of multi-generational land rights, it has not addressed all the issues and More education is required for individuals, practitioners, and judges. A solution, like mediation, that takes familial and inter-geneational conflict into account, may allow the Act to better serve its purpose. Heirs’ property issues are not of the type easily addressed in a single day in court, but require a depth of understanding of family and history.

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