As anyone who has visited Jamestown can attest, the history of land ownership goes back a long way. Throughout our region, many properties have been passed down generation to generation, often without a will, creating a unique problem for heirs currently living on the property.
Imagine for a moment your great grandfather, who had four children, passed away without a will. His property would be divided equally among his children, each owning an undivided quarter interest in the property. If each of his children have four kids of their own, there are now 16 potential heirs. The number of heirs has potential to expand with every passing generation. Since you need permission from all owners to get a mortgage or sell, think of how difficult it would be to find everyone.
An heir property can be defined as real estate that has been passed down from generation to generation, most often without a will, with current ownership divided among multiple heirs. When a person passes away without a will, their estate is distributed to heirs through a process called intestate succession. An heir property can also be created by will, when the deceased person leaves a property to multiple heirs (i.e. I hereby give all of my real property to my children in equal shares.). Over time, whether with or without wills, the number of owners of a property increases. In my experience, many heir property owners are completely unaware of their interest in a property.
When a piece of real property passes by intestate succession, here is what happens:
- Ownership of the property passes immediately to the heirs. It “drops like a rock”.
- All owners are tenants in common, meaning each owner’s interest in the property will pass to their heirs at death.
- Each owner has the right to use the property and cannot be denied access.
- Each owner has the right to possession of the entire property.
- Each owner has the right to sell their share of the property.
- Each owner has the right to request that a Court order the property to be sold via a partition suit.
Dangers of Heir Properties:
- All owners may not be known, and even if they are known, getting everyone to agree on a course of action may be impossible.
- Increased likelihood of disputes between family members.
- Very difficult to get a loan, sell the property, or lease the property to a third party.
- Negative tax consequences
- Inability for an heir to access and qualify for government assistance programs, such as those offered by the USDA and HUD.
- Increased likelihood of evictions and forced sales.
- Because any owner can force a sale by filing a lawsuit requesting partition of the property, it is very possible for a non-family member or company to acquire an interest and file suit.
Fixing Heir Property Issues:
The best and most effective way to prevent heir property issues is to create an estate plan and have a will. If an issue already exists, you should start by building an informal family tree. I recommend and use Ancestry.com. The next step would be to contact a real estate attorney with experience in heir properties.
- The attorney could then:
- Order a title examination going back decades, sometimes 100 years or more;
- Build a formal family tree
- Obtain appraisals and surveys if necessary
- File a quiet title action requesting the Court to declare who owns the property
- File a partition suit to either divide the property among the heirs (if possible) or sell the property.
Ultimately, the goal in these cases is to achieve our client’s desire outcome. A great result can be keeping property in the family. If you have an heir property issue or have questions about inheriting real estate, please give us a call.
