Heirs’ property is property passed to family members by inheritance, usually without a will, or without an estate planning strategy. Typically, it is created when land is passed from someone who dies “intestate,” meaning without a will, to their spouse, children, or others who may be legally entitled to the property. However, even if the person who died had a will, they may still create heirs’ property by leaving the property to multiple heirs. In both instances, the heirs own the property as “tenants in common,” which means they each own an interest in the undivided land. In other words, rather than each heir owning their own individual lot, they all own the whole property. Finally, unless the heirs go to the appropriate administrative agency or court in their locality, and have the title or deed to the land changed to reflect their ownership, the land remains in the name of the person who died. For the heirs, owning property as tenants in common without clear title leads to many problems, as outlined below.
Heirs’ property is most predominant among African American landholders in the South and has been a significant driver of African American land loss in the United States. In parts of South Carolina and Georgia, the Coastal Community Foundation of South Carolina estimated that 14 million acres of heirs’ property has been lost since the Civil War. A 2001 report from the US Agricultural Census estimated that about 80 percent of Black-owned farmland was lost between 1969 and 2001. Half of that property was estimated to be heirs’ property.
Heirs’ property is also an issue for white communities in Appalachia, Latinx communities in the Southwest, and Indigenous communities living on reservations.
State “intestate succession” laws govern who are heirs to property when someone dies without a will. In the U.S., every state’s law provides that family members who inherit property from someone who dies without a will own the property as tenants in common. If the tenants in common do not change the deed to the property to reflect that they own it, the property remains in the name of the deceased person rather than those who inherited it.
If the original heirs then die without a will, and their descendants inherit the original heirs’ interests in the land, each additional heir now has an ownership interest in the entire property. After a couple generations, there could be 25 heirs, each having an ownership interest in the land. After another generation, there could be 50 owners. Yet, the deed to the land will still show the original ancestor, now perhaps the current heirs’ great grandfather, as the owner. These 50 heirs, each with an interest in the land, now have a “cloudy title,” since the deed remains in the name of the great grandfather. This ownership structure is problematic for the landowners, for reasons explained below.
While there is no national data regarding the amount of land held as heirs’ property, some organizations have attempted to develop models to estimate the information. It is challenging to obtain specific data because every state, and each county within each state, compiles real estate ownership data differently. So, determining the amount of land held as heirs’ property requires examining both digital and physical records from individual county courthouses.
In 1980, the Emergency Land Fund estimated that 41 percent of land owned by African Americans in the Black Belt South was held as heirs’ property, for a total of 3.8 million acres.1 There have been a few more recent localized studies performed: one study from 2010 looked at 365 counties in 11 southern states where African Americans made up 25 percent or more of the population. This study extrapolated from the data collected and determined that heirs’ property comprised 1.6 million acres valued at $6.6 billion.2 The Federation of Southern Cooperatives estimates that 60 percent of African American-owned land is held as heirs’ property. Some media outlets have estimated that a third of African American-owned land in the south is held as heirs’ property—3.5 million acres valued at approximately $28 billion.3
Appalachia is known as a region where predominantly poor whites own substantial amounts of heirs’ property. In 2005, B. James Deaton, an agricultural economist, estimated that in a single county in Appalachian Kentucky between 14-24 percent of property was held as heirs’ property.4 Currently, there are broader studies underway to determine the amount of land in Appalachia held as heirs’ property.5
Indigenous people also hold a significant amount of land in the United States as heirs’ property. The Dawes Severalty Act of 1887 (the General Allotment Act) allowed for the division of Native American reservations into allotments for individual tribal members and made inheritance of these plots of land subject to state law. However, Native Americans did not treat land as a commodity, were not legally permitted by the U.S. to use wills to transfer land until 1910, and were unfamiliar with U.S. legal mechanisms such as wills.6 If someone died “owning” an allotment, their heirs were left the property via intestate succession laws of the state, and title remained in the name of the ancestor who died, creating significant amounts of heirs’ property.7
Most people who have studied heirs’ property agree that there are millions of acres in the U.S. held as heirs’ property, worth billions of dollars, in both urban and rural settings.
The Thirteenth Amendment to the U.S. Constitution formally abolished slavery in 1865. Approximately 3.9 million people, formerly enslaved, became citizens, which gave them the legal right to own land. The federal government initially promised certain freed enslaved people that they would receive former Confederate lands to assist in the transition from slavery. This promise, commonly referred to as “40 acres and a mule,” was set forth in a Special Field Order by General William Sherman on January 16, 1865. However, the Special Order was revoked when Andrew Johnson, a sympathizer of the Confederate South, became president after President Abraham Lincoln’s assassination.
Despite this failed promise, many African Americans were able to acquire land through the early 1900s by various means. By 1910, African Americans owned approximately 16 million acres of agricultural land in the U.S., predominantly in the South. According to the 1910 Agricultural Census, the 893,370 African American farm operators represented approximately 14 percent of all farm operators within the U.S. African Americans made up 28.7 percent of all farmers in the South. In Mississippi and South Carolina, African American farmers made up 60 percent and 54.9 percent of farmers, respectively, and in Louisiana, Georgia, and Alabama, approximately 40 percent of farmers were African American.8
Owning land is significant, especially for African Americans. It allowed for increased personal and economic freedom. Many Americans, including African Americans, believed that real economic and political independence could only be achieved by owning land. Landowners provided economic stability within their communities through payment of property taxes and support for local business. In addition, they were more likely to be civically engaged, having greater political influence. Landowners were important figures in the Civil Rights movement, including by providing shelter for activists on their land.
Although being landowners gave African Americans certain benefits, it did not shelter them from racism and violence perpetrated by white communities. White people used violence, legal manipulation, and intimidation to steal land away from African Americans. At the same time, government agencies such as the United States Department of Agriculture (USDA) contributed significantly to the problem by intentionally discriminating against African American farmers through denying and delaying loans, reducing loans given, and failing to provide technical assistance, leading to the tremendous loss of African American farms. In February 1997, a USDA Civil Rights Task Force acknowledged the history of racial bias at USDA and recommended solutions for the future, but failed to address how to compensate farmers for losses suffered.9 In August 1997, Timothy Pigford, a farmer from North Carolina, filed a class action discrimination suit against USDA, titled Pigford v. Glickman.10 The farmers who were party to the lawsuit claimed that USDA systematically denied, delayed, and reduced loans and other benefits to African American farmers, and then failed to investigate their complaints over the course of decades. This lawsuit led to the largest class action civil rights settlement in history.11 However, despite USDA settling the Pigford case, there continues to be a lack of participation in USDA programs by African American farmers, due to continued neglect by USDA, lack of information, and the legacy of racial discrimination.12
African American rural landholdings have significantly declined over the last 100 years from the almost 16 million acres of farmland operated by farmers in 1910 (14 percent of all farm operators), to less than 3 million acres operated by African American farmers in 2017 (1.5 percent of all farm operators).13 A number of factors have contributed to this loss, most of which stem from devastating and systemic racial discrimination:
The rate of African American land loss has been far greater than for other racial and ethnic groups in the same time period. It remains a continuing and systemic problem, as it is a significant factor in the wealth gap between white and African American populations. African Americans have 10 percent of the wealth of white Americans.15
There are numerous challenges for landowners who are heirs’ property owners, including the following:
The individual heirs who inherit real estate as heirs’ property do not have clear legal title to the land because the deed to the land remains in the deceased ancestor’s name. Since ownership of heirs’ property is transferred through inheritance and often there has been no recorded change in the name of the owner, it is difficult to prove ownership by the heirs. This is referred to as “cloudy title.” Heirs’ property owners with cloudy title cannot use the property as collateral for a mortgage or other type of loan for farm operating expenses or equipment, and cannot access government programs that require proof of ownership of land, including Farm Service Agency loans, USDA programs, or FEMA disaster recovery and relief assistance.
Additionally, it can be difficult to sell timber or other natural resources on the land to generate income, as reputable companies often require proof of ownership. Finally, heirs’ property owners cannot access government COVID-19 assistance as they generally cannot prove ownership of the land.
One piece of good news for heirs’ property owners: the 2018 Farm Bill, a package of legislation which governs many aspects of agricultural policy in the U.S., required the USDA’s Farm Service Agency to develop rules allowing heirs’ property owners to obtain a farm and tract number, even if they have cloudy title to their property. USDA requires farmers to have a “farm number” to participate in and benefit from many of the agency’s programs. Having a farm number allows a farmer to be part of the USDA system and receive notice of new programs and other opportunities, get technical assistance from USDA, obtain loans, and take advantage of USDA’s many programs. It also allows farmers to participate in elections for local USDA county committees, which determine local farmers’ ability to obtain loans, along with other matters. The Farm Service Agency has issued guidance that sets forth rules regarding how different types of heirs’ property owners can obtain a farm number by showing documentation that they are the farm’s owner or operator.
In the U.S., each state’s law considers heirs’ property owners to be “tenants in common.” The laws governing tenants in common generally require full agreement among the heirs for any commercial activity on the land, such as timber sales, development, or leasing. This can be extremely difficult to obtain, especially if there are multiple generations of heirs who must come to agreement. Specifically, it can be hard to locate all the heirs, and even if they are found, families often cannot agree on what to do with the land. The USDA's Farm Service Agency runs an Agricultural Mediation Program that can help with family disputes regarding heirs' property.
As an example, assume 63-year-old Ms. Smith farms on land she has lived on for her entire life. She wants to get a farm and tract number from USDA, which is necessary so she can qualify for a loan from USDA’s Farm Service Agency to buy seed and other items she needs to plant her crops for the season. However, the land she farms was originally owned by her grandfather, who left it to her father and his two siblings, all of whom are deceased. Her father’s two siblings each had several children; one cousin died, and Ms. Smith believes the rest of her cousins are alive, but she does not know where they are. Her brother and sister moved away years ago, but she remains in touch with them. The last deed to the land on record lists her grandfather as the owner, as the family did not have an attorney clear the title after her grandfather or her father and his siblings died.
Because she has cloudy title to the land, and there are numerous other owners of the land from whom she has to obtain consent to do business, it is very difficult for her to make decisions that could generate income from the land. Ms. Smith cannot participate in most USDA programs, obtain USDA or Farm Service Agency loans, enroll in commodity support programs or disaster assistance programs, or get technical assistance. She cannot use her property as collateral for any loans from banks or other financial institutions. Put simply, she cannot participate in any activity that requires her to demonstrate clear legal title or sign anything as the “owner.”
Owners of heirs’ property are particularly vulnerable to losing their land because they are subject to a legal action called a “partition action.” State law generally provides that because heirs’ property owners are tenants in common, any of the co-owners of heirs’ property can bring an action in court to obtain the value of their interest in the property. Once a partition action is filed, a court can order a “partition in kind” or “partition by sale.” A partition in kind results in a court ordering the physical division of the land equitably and proportionate to the value of each owners’ share. When a court orders partition by sale, the property is sold to the public, usually by forced sale at an auction, and the owners of the property lose their family legacy and generally receive a small percentage of what the land is worth, much less than the property’s fair market value.
Although most states have a legal preference for partition in kind, many courts have ordered partition sales even where the property can be divided. Even if 50 heirs own a tract of land as tenants in common, the owner of one 1/50th interest can file a partition action in court and ask the court to order a forced sale of the property, which is likely to result in a sale of the property at a very low price at auction.
For example, if one family member is financially vulnerable and has no connection to the land or to the family living on and farming on the land, and a real estate developer offers that family member a few thousand dollars for their share, that offer could be very attractive. Many heirs’ property owners do not know that if they sell their share to the real estate developer, the developer can ask a court to order the sale of the entire property. Unfortunately, this type of event is quite common.
Partition sales have proved devastating to African American landowners, resulting in forced sales of millions of acres of property and the loss of a tremendous amount of land, wealth, and family legacy.
The Uniform Partition of Heirs Property Act (UPHPA), completed by the Uniform Law Commission in 2010, contains legal protections for heirs’ property owners designed to address the devastating effect of partition sales. The UPHPA restructures the way partition sales occur in states that adopt the act, and generally includes three major reforms to partition law:
As of January 2021, 17 states and the Virgin Islands have passed the UPHPA, including Alabama, Arkansas, Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, South Carolina, Texas, and Virginia.16 The passage of the act in all 50 states could mitigate the impact of partition sales on heirs’ property owners.
Overall, a substantial number of Americans do not have wills or other estate plans; studies show the rate of dying without a will (“intestacy”), is between 40 and 70 percent, depending on factors such as race and income level. At least one study showed there is a significant racial disparity between the rates of will making of white and African Americans, showing that 64 percent of white Americans made wills compared to only 24 percent of African Americans. Even the most highly educated African Americans surveyed had much lower rates of will making than the least educated white respondents.17 The Emergency Land Fund estimated in 1980 that as many as 60 percent of African American landowners did not have a will.18
Theories for the racial gap in will making and estate planning abound and are grounded in historical oppression and systemic racism. As enslaved people, African Americans could not own land or other material things that build familial and generational wealth. Throughout American history, land has been stolen from African American landowners by unscrupulous people with the collusion of lawyers, resulting in an understandable distrust of lawyers.19
Estate planning and will making are critical to avoid the challenges for heirs’ property owners outlined above.
Lawyers who help families with heirs’ property must have experience in trusts and estates, real estate, and business law. Before hiring an attorney, families should attempt to find out the identities of the heirs, create a family tree, and collect all information possible regarding the land and its recorded owners. Family bibles where handwritten records of births and deaths have been kept, birth certificates, and death certificates are all relevant. In order to prove the identity of the heirs, an heirship affidavit may have to be filed with the court, and the family will have to demonstrate it made a diligent search and inquiry for all the heirs. A lawyer can review documents provided, review any available public records, discuss particular issues regarding the family’s land, and recommend next steps. These recommendations should include estimated costs for each stage of resolving the heirs’ property issues, and what the family can do to prevent further distribution of heirs’ property, including perhaps creating a trust, an LLC, or another business entity to hold the land.
The USDA’s Farm Service Agency (FSA) runs an Agricultural Mediation Program which can be used by heirs’ property owners to mediate family disputes. The FSA grants funds to relevant state agencies to support mediation between those involved in many kinds of disputes related to agricultural issues, including USDA decisions on loans, conservation programs, wetland determinations, and rural water loan programs. Other disputes that can be mediated include lease issues between a landlord and tenant, family farm transition issues, farmer-neighbor disputes and family disputes regarding heirs property. For example, if a lender denies a farmer a loan, they may request mediation before resorting to an administrative appeal within the relevant agency. Mediation helps producers avoid significant costs associated with litigation. A list of state certified agricultural mediation programs is here:
1. The Emergency Land Fund, The Impact of Heir Property on Black Rural Land Tenure in the Southeastern Region of the United States 50, 62–63 (1980); Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss: A Critical Role for Legal Empiricism, 2005 Wis. L. Rev. 557, 582 (2005); Cassandra Johnson Gaither, “Have Not Our Weary Feet Com to the Place for Which Our Fathers Signed?”: Heirs’ Property in the United States, United States Dep’t of Agric. Forest Serv. (2016), https://www.srs.fs.usda.gov/pubs/gtr/gtr_srs216.pdf.
2. Gaither collects the data that existed in 2016 in her book produced by the Forest Service. Gaither, supra note 1, at 13.
3. Michelle Chen, Black Lands Matter: The Movement to Transform Heirs’ Property Laws, The Nation (Sept. 25, 2019), https://www.thenation.com/article/archive/heirs-property-reform/.
4. Gaither, supra note 1.
5. Liken Knowledge, a community based organization based in Kentucky, is spearheading an heirs’ property project to attempt to determine the frequency of occurrence of heirs’ property. Heirs’ Property Project, Liken Knowledge, https://likenknowledge.org/projects/heirs-property-project/.
6. Gaither, supra note 1.
7. For more information regarding heirs’ property and the complicated land issues facing Native Americans, see Indian Land Tenure Foundation, at https://iltf.org/land-issues/.
8. 1910 Census: Volume 5. Agriculture, 1909 and 1910, General Report and Analysis, United States Census Bureau (1913), https://www.census.gov/library/publications/1913/dec/vol-5-agriculture.html.
9. Tadlock Cowan & Jody Feder, Cong. Research Serv., RS20430, The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers 2 (2013).
10. Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff’d, 206 F.3d 1212 (2000).
11. When Black Farmers Prevailed: Remembering the Historic Pigford Case, RAFI-USA (Aug. 13, 2015), https://www.rafiusa.org/blog/tbt-when-black-farmers-prevailed-remembering-the-historic-pigford-case/.
12. Nathan Rosenberg & Bryce Wilson Stucki, How USDA distorted data to conceal decades of discrimination against Black farmers, The Counter (June 26, 2019, 7:00 AM), https://thecounter.org/usda-black-farmers-discrimination-tom-vilsack-reparations-civil-rights/; Abril Castro & Zoe Willingham, Progressive Governance Can Turn the Tide for Black Farmers (Apr. 3, 2019), https://www.americanprogress.org/issues/economy/reports/2019/04/03/467892/progressive-governance-can-turn-tide-black-farmers/.
13. 2017 Census of Agriculture – UNITED STATES DATA, USDA, Nat’l Agric. Stats. Serv. 72–75 (2017), https://www.nass.usda.gov/Publications/AgCensus/2017/Full_Report/Volume_1,_Chapter_1_US/st99_1_0061_0061.pdf.
14. Thomas W. Mitchell, Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners 65 (2019).
15. Black households have 10% of the wealth of white households. See Castro & Willingham supra note 11.
16. Partition of Heirs Property Act, Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=50724584-e808-4255-bc5d-8ea4e588371d (last visited Jan. 24, 2021).
17. Mitchell, supra note 14.
18. Edward Pennick & Monica Rainge, African-American Land Tenure and Sustainable Development: Eradicating Poverty and Building Intergenerational Wealth in the Black Belt Region, in Heirs’ Property and Land Fractionation: Fostering Stable Ownership to Prevent Land Loss and Abandonment 3, 94 (Cassandra J. Gaither et al. eds., 2019).
19. Gaither, supra note 1; Mitchell, supra note 14.
The Center for Agriculture and Food Systems is an initiative of Vermont Law School, and this toolkit provides general legal information for educational purposes only. It is not meant to substitute, and should not be relied upon, for legal advice. Each farmer’s circumstances are unique, state laws vary, and the information contained herein is specific to the time of publication. Accordingly, for legal advice, please consult an attorney licensed in your state.