The way we can best take care of ourselves is to have land, and turn it and till it by our own labor … and we can soon maintain ourselves and have something to spare.Garrison Frazier
What happens when a landowner dies without a will? What happens if the person who passed without a will has multiple children? And then when they pass without a will? You can imagine how the land ownership can get really complicated, really quickly.
When multiple people inherit family land, especially without a written will and without a clear deed, this becomes what is known as heirs property. If everyone knows each other AND has consensus on what will happen AND have a “clear title” to the property, then this arrangement may work out fine. You can also imagine that this can be cumbersome and unlikely once you start getting past the original children of the owners.
In most states, if one of the heirs wants to sell or otherwise change the purpose of the land, there’s a risk that if the issue goes to court, the judge can direct that the land be sold and the proceeds distributed amongst the group. This complicated ownership structure leads to loss of family land, particularly farm and forest land that is sold for development, often at rates below what it’s worth. Indeed, developers have been known to trawl county tax records and find likely heirs property they think they may be able to purchase through the scenario I laid out above.
Among other problems, like outright discrimination from the USDA, this has contributed to land loss for Black farmers in particular. According to a ProPublica report in 2019, between 1910 and 1997, Black Americans lost a significant amount of their farmland, though the number they arrived at – 90% of land – may be an overestimate. Of the farmland they do own, currently one-third of Black owned farmland in the South is heirs property.
They [heirs property owners] don’t qualify for certain Department of Agriculture loans to purchase livestock or cover the cost of planting. Individual heirs can’t use their land as collateral with banks and other institutions, and so are denied private financing and federal home-improvement loans.–Lizzie Presser, ProPublica, 2019
We all lose because of this. This land could be contributing to local and national economic gains as productive timber or farmland. Indeed, a study released early in 2020 demonstrated that clear title is more valuable than improved forestry management, access to funding, or broader markets. If this land is lost to development, like so much other land in the past two decades, that’s a lost opportunity for greater food security and underappreciated ecosystem services like flood mitigation and carbon sequestration. We lose a vital link to our past and maybe to our futures.
Here’s the thing – it doesn’t have to be this way. There are a number of solutions. At the policy level, the Uniform Partition of Heirs Property Act (UPHPA), written by the Uniform Law Commission will significantly improve the ability of property owners to maintain their ownership and access USDA programs. Texas A&M University professor Thomas W. Mitchell (and recently recognized as MacArthur “Genius Grant” Fellow) was the Reporter for the UPHPA drafting committee and the committee’s policy decisions were greatly influenced by his original research into loss of family-owned real estate. The 2018 Farm Bill also made provisions for local nonprofits to provide legal assistance to clear title and secure ownership.
As of this revision in March 2021, 18 states have enacted the UPHPA; 7 more and the District of Columbia have introduced it. North Carolina introduced a bill on March 23, 2021. Our neighboring states of Virginia and South Carolina enacted it in 2020 and 2016, respectively.
Copied from the Uniform Law Commission website, February 2021.
Land holding families:
Non-profit groups like the Land Loss Prevention Project in Durham, North Carolina, have been at work on this and related issues for more than 37 years, “providing comprehensive legal services and technical support to North Carolina’s financially distressed and limited resource farmers and landowners seeking to preserve their farms, homes, land and rural livelihoods.” Their recently updated Ten Ways to Save Your Land provides guidance relevant to everyone, with NC focused resources.
Here’s a short list of what families with land should do, according to ProPublica:
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.
If you are not the property owner but will inherit the land, be persistent with your family member. Ensure they have a written, legally recognized will that is signed and up-to-date. Verify that the title is clear and they have a copy of the deed. If appropriate, ask them to provide you with photocopies of these documents.
And if your family doesn’t own land, you can still take action on this by spreading the word about heirs property, donating money to organizations like the Land Loss Project that help clear title, and contacting your state legislators to voice your support for the UPHPA.
Sustainable Forestry and African American Land Retention Network
Center for Heirs Property, located in South Carolina, has excellent FAQs and resource lists
Land Loss Prevention Project, North Carolina, resource lists, videos, and consultations
Video presentation by Mavis Gragg of Gragg Law Firm, explaining heirs property, from the Center for Environmental Farming Systems
Mavis is currently the Executive Director at the Sustainable Forestry and African American Land Retention Network. Check out some more of her upcoming work at Heirs Shares and listen to her recent interview on WUNC’s The State of Things
Shout-out to the Carolina Farm Stewardship Association who offered a session on heirs property as part of the Sustainable Agriculture Conference in 2019. The session was presented by Savonala “Savi” Horne, JD, Executive Director of the Land Loss Prevention Project, and Benjamin Orzeske, Uniform Law Commission Chief Counsel.
Land Loss Prevention Project Fact Sheet 2020 (Jan. 2020)Download
If you want to learn more about historical injustices related to Black land ownership, the 1 hour documentary, “Homecoming” by Charlene Gilbert is a good intro that weaves her story and the story of her family into the larger narrative. And though it’s more tangential, I can’t help but put in a plug for the fantastic book, “Warmth of Other Suns” by Pulitzer Prize winner, Isabel Wilkerson. She interviewed over 1,200 people to document the story of the Great Migration of over 6 million people who left the South between roughly 1915 and 1970. I was so enraptured with the stories of the three individuals she tells that the history she incorporates into the book only adds to the drama of their lives. Understanding the history of the Great Migration provides insightful context on how Heirs Property and associated land loss became as prevalent as it is in the Black community.