Heirs property, or heirs' property, refers to property that is passed between generations of family members without the involvement of local probate courts, without a will or formal estate strategy. Heir property is commonly viewed as an unstable form of ownership, since co-owners often have limited rights over the property.
Background Heirs Property occurs when a deceased person's heirs or will beneficiaries become owners of property (also known as real property) as tenants in common. When a property is probated, a deceased person either has a will and the property is passed on to the named beneficiary, or a deceased person dies intestate, without a will, and the property could be split among multiple heirs who become cotenants. If the probate court enters an order of distribution, or if the estate administrator signs a deed, the ownership passes formally. Heirs property cases typically occur because a person dies without a will and the family members do not get the probate courts involved, making the property part of the intestate estate which will be distributed according to state guidelines. Over time, the number of heirs can increase making it difficult for the property to be sold or divided in the future.
One of the biggest problems heirs property owners face are how the property is shared among heirs and how it will be divided or sold in the future. Tenancy in common, a method of owning property, allows each person designated as a tenant in common to own an undivided interest in the whole property, with no limit as to how many tenants in common may also have an interest in the whole property at issue. Properties passed to heirs who become tenants in common may devalue over time because of how divided the property can become, which can impact future generations of heir property owners. Other issues which can arise under tenancy in common include the right for each tenant to sell their share without the permission of other cotentants and the right of any co-tenant to file a lawsuit requesting the property be partitioned by sale and forcibly sold. Partition by sale is a court remedy used when a parcel of land cannot be physically divided, and the proceeds for the sale are distributed proportionally among the cotenants. Cotenants can request another remedy, partition in kind, which would split the property into parcels proportionate to the shares each cotenant has. Partition by sale are more common than partitions by kind due to the economic benefit they pose to the cotenants.
Another issue facing those with shares in heirs property is the fact that the title to the property is rarely ever "clear". This means that the deed for the property may not contain all of the cotenants, or it may even list the deceased property owner still. This can pose difficulty for cotenants to access resources like loans, FEMA assistance in the event of a natural disaster, or other state and federal programs.
History Beginning in the 1950s 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.
Uniform Partition of Heirs Property Act In 2010, the Uniform Law Commission drafted a model Uniform Partition of Heirs Property Act. As of 2024, the Uniform Partition of Heirs Property Act has been enacted in 23 states and territories and introduced in an additional 6 states. 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. The purpose of the Act is to prevent partition by sale to the fullest extent possible while there are some cotenants who still wish to live on the land while other cotenants may wish to sell the property. The UPHPA outlines three reforms to the law of partition sales in order to address the process of these sales in practice:
If a co-owner brings a partition action in court, the court must provide an opportunity for the other co-owners to buy out the co-owner who brought the action. If there is no buyout, then the law provides a preference for the court to order a partition in kind and divide the property, rather than order a sale. If a partition in kind is not ordered, the UPHPA requires the court to sell the property at a market sale, not at an auction sale, and specifies a process for the property to be appraised and sold for its fair market value. As stated in the UPHPA, heirs property is defined as:
"(5) real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: (A) there is no agreement in a record binding all the cotenants which governs the partition of the property (B) one or more of the cotenants acquired title from a relative, whether living or deceased; and (C) Any of the following applies (i) 20 percent or more of the interests are held by cotenants who are relatives (ii) 20 percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or (iii) 20 percent or more of the cotenants are relatives"
The values of 20% are not established values, but were likely chosen by the drafters of the UPHPA in an attempt to define parameters for heirs property for the purpose of the Act. +States which have enacted the Uniform Partition of Heirs Property Act include:StateStatus of LegislationYear of EnactmentBill NumberTitle of BillNevadaEnacted2011AB 244Enacts the Uniform Partition of Heirs Property ActGeorgiaEnacted2012HB 744Uniform Partition of Heirs Property ActMontanaEnacted2013SB 207Adopt Uniform Partition of Heirs Property ActAlabamaEnacted2014SB 162Property, Alabama Uniform Partition of Heirs Property Act, createdArkansasEnacted2015HB 1245An Act to Enact the Uniform Partition of Heirs Property Act; To Make Related Technical Corrections; and for Other PurposesConnecticutEnacted2015SB 900An Act Concerning the Adoption of the Uniform Partition of Heirs' Property Act and Estates Given in Fee TailHawaiiEnacted2016SB 2408Real Property; Partition; Heirs' Property; Uniform Partition of Heirs Property ActSouth CarolinaEnacted2016HB 3325Uniform Partition of Heirs Property ActNew MexicoEnacted2017HB 181Uniform Partition of Heirs Property ActTexasEnacted2017SB 499Relating to the adoption of the Uniform Partition of Heirs' Property ActIowaEnacted2018SF 2175A bill for an act relating to partition of property in kind and partition of property by saleIllinoisEnacted2019HB 3677Uniform Partition of Heirs Property ActMissouriEnacted2019SB 83Modifies provisions relating to court proceedings (note: a section of this bill codifies the Heirs Property Act)US Virgin IslandsEnacted201932-0327US Virgin Islands Code Title 28 - Property Chapter 21 - Actions for Partition of Real Property § 451. Right to maintain action for partitionFloridaEnacted2020SB 580Uniform Partition of Heirs Property ActMississippiEnacted2020SB 2553Uniform Partition of Heir Property ActNew YorkEnacted2020SB 4865Establishes the uniform partition of heirs property act which supplements the general partition statute and governs actions to partition heirs propertyVirginiaEnacted2020HB 1605Partition of property; in partition actions the court shall order an appraisal of propertyCaliforniaEnacted2021AB 633Partition of real property: Uniform Partition of Heirs Property ActMarylandEnacted2022SB 92/HB 777Real Property - Partition of PropertyUtahEnacted2022HB 120Uniform Partition of Heirs' Property ActDistrict of ColumbiaEnacted2023B24-0156Uniform Partition of Heirs Property Act of 2021 (aka Partition of Real Property Act of 2022)WashingtonEnacted2023SB 5005Concerning real propertyArizonaIntroduced2024HB 2521Partition; property; inheritance (note: if passed, will likely be titled Uniform Partition of Heirs Property Act)KansasIntroduced2024HB 2693Enacting the uniform partition of heirs property act to prescribe procedures and requirements for partition of certain real property (note: if passed, this Bill may have a different title)MassachusettsIntroduced2024H 1744/ S 2560An Act Relative to Uniform Partition of Heirs Property (note: if passed, this Bill may have a different title)MichiganIntroduced2024HB 4924Revised judicature act of 1961 (note: if passed, this Bill may have a different title)New JerseyIntroduced2024S 1400Uniform Partition of Heirs Property Act (note: if passed, this Bill may have a different title)North CarolinaIntroduced2024H 588/S 548Uniform Partition of Heirs Property Act (note if passed, this Bill may have a different title)
2018 Farm Bill The Agricultural Improvement Act of 2018 (aka the 2018 Farm Bill) was signed into law on December 20, 2018. This bill 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. § 12615 of the Agricultural Improvement Act of 2018 delineates the eligibility requirements for operators of heir property land to obtain a farm number in states where the Uniform Partition of Heirs Property Act was enacted. These requirements include:
a court order which verifies the land as heirs property, a certificate from the local deed recorder stating the recorded owner of the property is deceased and at least one heir is attempting to have the land retitled and placed in the name of the rightful heir, a tenancy-in-common agreement which was approved by the majority of ownership interests in the property which gives a particular owner the right to manage the property as a farm or ranch, tax returns for the farm submitted by the farm operator, self-certification from the farmer stating they have control over the land to operate a farm, or any documentation deemed appropriate by the Secretary.
Farm numbers will be allotted so long as any of the above documentation is submitted by the farm operator to demonstrate their control of the land as a farm. By establishing a farm number, heirs property owners will be eligible for several programs and provisions established by the USDA including: targeted funding through farm loans, crop insurance benefits, and conservation program benefits.
Additionally, the Farm Bill established the Heirs' Property Relending Program with the purpose of solving land ownership and succession issues on agricultural land. The process for participating in the program is as follows:
The USDA will provide loans to eligible lenders, like cooperative, credit unions, and nonprofit organizations Heirs will apply directly to the lenders, and upon receipt of the loan, will repay the loan at the interest rates set by the lenders Heirs can use the loans to resolve any outstanding issues on the title to the property by financing or consolidating the property Heirs obtain clear legal title after resolving outstanding issues related to the title which then allows for heirs to apply for USDA programs as well as other US government resources like FEMA assistance.
Federal Emergency Management Agency