Kicked Off the Land: The Heirs’ Property Problem

This article, featured in the July 2019 edition of the New Yorker magazine and co-published by ProPublica, addresses the “heirs’ property” problem in the Southern United States. “Kicked Off the Land” describes the use of the Torrens Act, petitions to partition, and the court system to push property owners off of their land, using Carteret County in Eastern North Carolina as an example.

Heirs’ property (or heir property) generally refers to land that has been passed down informally from generation-to-generation. In most cases, it involves landowners who died without a will and the rule of law determines the heirs. Over time, as the generational trees grow, more and more heirs inherit and interest in the land, regardless of whether they live on it, pay the taxes on it, or even know where it is.

Heirs’ property is estimated to make up more than a third of Southern black-owned land—3.5 million acres, worth more than twenty-eight billion dollars. These landowners are vulnerable to laws and loopholes that allow speculators and developers to acquire their property.

What can heirs’ property owners do to protect their land?

ProPublica concludes with a useful list of steps heirs’ property owners can take to protect their interests:

• 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.

For more information about heir property and how to successfully preserve your interests, please contact Blue LLP partner Dan Blue III.