Preface

Heirs’ Property Ownership

Laws of Descent and Distribution

Disadvantages of Heirs’ Property

Partition Actions

The Uniform Partition of Heirs Property Act

Steps to Protect Your Land

Options for Continuing Unpartitioned Heirs’ Property

Costs to Clear a Title

Alternatives to Clearing Title to Heirs’ Property

Tips for Hiring an Attorney

Frequently Asked Questions

Key Terms

References

Disclaimer

Acknowledgment

Heirs’ property is a complicated, vulnerable form of property ownership in which wills are absent and land is passed down informally for generations. This type of ownership has historical roots in the Jim Crow era in the South and is common among rural mountain communities throughout Appalachia where few legal resources were used or available. Heirs’ property continues to be a particularly vexing problem in North Carolina and throughout the South, occurring in rural, suburban, and urban areas. Figure 1 shows that heirs’ property exists in all North Carolina counties and in most counties across neighboring states. Many of these properties are concentrated near the coast, but they are common throughout the state.

New heirs’ property continues to be created, with a concerning number of landowners having no succession plans and leaving property without a will for their heirs. The result has been significant land loss throughout North Carolina, particularly in Black communities. This loss has created an erosion of intergenerational wealth transfer, which has had negative consequences for succeeding generations. In addition to creating challenging family dynamics and a loss of family wealth, North Carolina loses prime agricultural and forestry land due to development and parcel fragmentation. This will have a long-term impact on our strong agriculturally based economy, which contributes over $111 billion to the state's coffers (North Carolina Department of Agriculture & Consumer Services 2024). North Carolina has also become a prime location for people wanting to relocate to a state with a rural community character and available land. This has led to North Carolina being projected to be second in the nation for agricultural and forest land loss via development by the year 2050 (Hunter et al. 2022). Family property remains an important resource that deserves thoughtful consideration and one that is worth preserving in North Carolina. Our hope is that this publication will begin to move the needle for landowners to engage families in meaningful succession and estate planning and to take the necessary legal steps to ensure the wise transfer of assets to succeeding generations.

Heirs’ property is land owned commonly by the descendants (or heirs) of someone who has died without a will or has an improperly written will or whose estate was not offered for probate. In the United States, the concept of heirs’ property has become associated with the systematic exclusion of minorities from property ownership and rights. After the Civil War, many Black people were deeded land by others or purchased land for themselves. During this time, many landowners did not leave written wills due to the legacy of laws against teaching enslaved people to read and write and later due to restrictive Jim Crow laws affecting Black Americans. A tradition of verbal bequeaths—or informal methods of passing down wealth and property—remains common today in many minority communities. However, many state laws do not recognize verbal bequeaths, resulting in land being designated as heirs’ property.

Lack of access to legal resources and knowledge about property rights, distrust in local governments, and cultural traditions of communal or collective land ownership are factors that contribute to heirs’ property ownership. Heirs’ property is not exclusive to any ethnic or racial group. However, those most often impacted are Black, Hispanic, Appalachian, rural or agricultural, indigenous, low-income, and marginalized communities across the United States.

While many co-owners enjoy the flexibility and sense of community that heirs’ property fosters, the title to such property is usually clouded. There are several disadvantages to keeping land under a clouded title instead of a clear title. Forced tax sales and partition sales often lead to people outside the family buying the land. The absence of clear title means heirs are unable to use the property as collateral for mortgages or gain access to many government programs. Thus, holding land as heirs’ property causes land and wealth loss, contributing to the wealth gap among racial and ethnic minority groups.

Many misconceptions surround heirs’ property, and confusion and conflict often occur among heirs. It is important to know the risks, laws, rights, and responsibilities of land ownership and the proper steps for protecting land and options for clearance and land use.

Figure 1. As of 2023, 40,000 land parcels in North Carolina were classified as heirs’ property.

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Figure 1. As of 2023, 40,000 land parcels in North Carolina were classified as heirs’ property.

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In the United States, state codes specify how property is to be distributed if someone dies without a valid will (dying "intestate") or estate plan or if the will does not state how property is to be divided. These laws of descent and distribution vary by state. Generally, in most states, if a spouse, children, or parents survive the deceased, they acquire the estate according to a specific sequential order and amount determined by the state. Table 1 describes how North Carolina law determines the hierarchy of inheritance for intestate property. Most states allow for a “spousal share,” ensuring that the spouse receives some portion of the estate, even if other heirs exist. If the deceased is not survived by a spouse, child, parent, or other family members, other heirs are entitled to the deceased’s assets, depending on their degree of kinship. In most states, relatives who share only one biological parent (half-blood relatives) are entitled to receive the same portion of the estate as if they are whole-blood relatives. In addition, many state laws allow adopted children to be treated the same as biological children. These laws often protect the rights of children of the deceased who were born out of wedlock (paternity must be established, generally while the father is alive, if the heir is a child of the father), conceived before the deceased’s death, or lacking citizenship status (foreign-born, not naturalized).

The law also describes more complex divisions of assets for additional lineal descendants who survive (for example, grandchildren, great-grandchildren, and great-great-grandchildren), for siblings and their lineal descendants (for example, nephews and nieces), or for aunts and uncles and their lineal descendants (for example, cousins). If no heir (a descendant of the deceased) survives, the estate is passed to the state. Laws of descent and distribution can be complex.

For guidance related to inheritance concerns, we advise potential heirs to consult a legal professional, typically a probate or estate lawyer, who is familiar with the state or jurisdiction.

While heirs’ property ownership may have some advantages, such as preservation of family legacy and cohesion, shared benefit, and access and ties to the property, keeping land with a clouded title can have notable disadvantages.

Vulnerability to Loss

Partition Sales

Any co-owner can bring a lawsuit to force a "partition in kind" (physical division of the property) or sale of the property as a way to get their share of the property or proceeds.

Tax Sales

If property taxes are unpaid, the government can auction the property to recover the debt. In North Carolina, profits received in excess of the tax amount are returned to the owner.

Adverse Possession

External parties can claim ownership of the property, even if they have not paid the co-owners for it, simply by exerting possession (for example, by building a fence across or around the land) and using the land openly, continuously, and exclusively for a period of time. Adverse possession in North Carolina is generally for 20 years, after which the nonowner becomes the owner (North Carolina General Statutes § 1-40).

Unclear Division Among Heirs

Maintenance

Any repairs or routine maintenance on the land or structures are the shared responsibility of all owners.

Improvements

Any improvements made to the land (for example, planting trees, making agricultural improvements, or repairing or building a home) become the assets of all heirs entitled to the land, regardless of who funded the enhancements.

Diminishing Interests

With each generation that passes without a clear title, the number of heirs increases, and the size of each person’s fractional interest decreases. It becomes increasingly difficult to physically divide heirs’ property into equal pieces among the descendants or for the owners to make collective decisions about the property. If a house is passed down as heirs’ property, physical division is nearly impossible. Table 2 provides an example of the pathway of inheritance to a 40-acre parcel of heirs’ property over nine generations, from 1865 to 2025. In the example, if every generation consisted of four offspring who each had four offspring, there would ultimately be 262,144 heirs by 2025, each with a shared interest equivalent to 0.000015 acres, or less than 1 square foot.

Heir Disputes

Conflict can arise among heirs around decision-making, use of land, and division of assets or responsibilities, leading to rifts in families.

Limitations on Financial Aid and Assistance

Co-owners of heirs’ property often face restrictions on the kinds of financial support or assistance they can access.

Federal and State Funding

Lending institutions and government organizations like the Federal Emergency Management Agency (FEMA) usually require homeowners to have clear title to their home and land. The land may not be eligible for federal, state, or regional funding offered to landowners or homeowners. Many programs for home repair or improvement, mortgages, taxes, or foreclosure prevention also require a clear title. While FEMA has begun recognizing heirs’ properties for emergency assistance, many other state and federal programs remain out of reach.

Financing

It is common for property owners to apply for financing to make improvements to heirs’ property or as security for outside purchases. Heirs’ property cannot be used as collateral for a loan from a financial institution.

Restricted Use of Land

It is not uncommon for a single heir to lease the heirs’ property land, sell timber or other natural resources from the land, or engage in an informal agreement to allow another party to use the land. When an heir takes these actions without the approval of all heirs or retains all the profits, it can create deep family tensions and the potential for legal action. Furthermore, in such instances of sale, harvesting, or leasing, the buyer or lessee often offers a lower purchase or lease price than if the title were clear, ultimately reducing family wealth generation.

Leasing

It is difficult to lease out heirs’ property for purposes of agriculture (such as crop cultivation or livestock farming), residences (such as short- or long-term rental housing), or recreation (such as camping or sporting).

Selling the Land

If land is sold, many family members cannot afford to buy out other co-owners or outbid developers or real estate speculators to keep the land in the family.

Selling Timber Rights

Most timber companies will purchase timber only from land with a clear title.

Heirs’ property, no matter how many co-owners share ownership, is vulnerable to partition. There are two primary types of partition actions: "partition by sale" and "partition in kind." Partition by sale is the sale of a property followed by a division of proceeds among the co-owners. Partition in kind involves the allocation of shared property so that each co-owner has their own separate interest. After a partition action is filed, a court can order a partition by sale or a partition in kind.

Partition By Sale

One or several co-owners can file a partition lawsuit and force a court-ordered division of the land or sale of land. The co-owner or co-owners who initiate a partition action do not need the permission, agreement, or consent of the other heirs. If a family member cannot be reached when a suit for partition is filed, the court will appoint a guardian ad litem to act in the interest of the absent relative.

Partition In Kind

Partition in kind is also known as partition by division or partition by allotment. Land is physically divided among co-owners based on fractional interests. The land must be surveyed by order of the court to facilitate a partition in kind option, and property lines are drawn for each person. Each co-owner then receives an administrator’s deed for their portion of the land. Partitions in kind are performed under a written agreement signed by all the co-owners and filed and recorded at the county courthouse. In the agreement, each subdivided parcel is described.

The Uniform Partition of Heirs Property Act (UPHPA), a model state law, has been passed by 23 other states (UniformLaws.Org). The law has not yet been passed in North Carolina, but it remains under consideration by legislators. This law helps preserve family wealth passed to the next generation in the form of real property. Without the protections of the UPHPA, if a landowner dies intestate, the real estate passes to the landowner’s heirs as tenants-in-common under state law. Tenants-in-common are vulnerable because any individual tenant can force a partition. In states without the UPHPA, real estate speculators can acquire a small share or interest of heirs’ property in order to file a partition action and force a sale. Using this tactic, an investor can acquire the entire parcel for a price well below its fair market value and deplete a family’s inherited wealth in the process.

Following is a summary of some of the protections offered in the UPHPA.

Enhanced Notice

Notice of filing for partition in the court must be sent by the court to all known heirs and a conspicuous sign posted on the property.

Independent Appraisal

The court can appoint a disinterested licensed real estate appraiser to determine the fair market value.

Right of First Refusal

All co-owners have the right to buy out the co-owner who brings a partition action to the court.

Preference for Partition in Kind

Division of the land is preferred by the court if it does not cause significant problems among co-owners.

Partition Actions

If the court determines that it is in the best interest of the co-owners and more economically advantageous, the property is listed for sale at a value determined by the court. When a partition by sale is requested by any heir, the court must follow the specifications of the UPHPA. This law provides more protection for heirs but can still lead to the sale of the property outside the family. The UPHPA provides an opportunity for co-owners to buy out the co-owner who brings a partition action. If a buyout does not occur, then the court must consider several factors, such as current use of the land, sentimental value, and family legacy, in deciding whether to divide up the property or sell the land. If the court determines that a sale is the appropriate option, it must choose among an open market sale, sealed bid, public auction, or private sale. Each co-owner receives proceeds based on their respective fractional interest in the property. Sales go to the buyer who offers the highest price, though it is often a fraction of market value. In some cases, developers force a partition by sale by purchasing a relative’s share or interest in the property and petitioning the court to have this share sold, forcing the whole parcel to be sold. Although heirs can bid for their property, they are rarely able to outbid developers or speculators. Proceeds from the forced sale are distributed among the co-owners according to their fractional interests, but only after court fees, the costs of conducting the sale (including surveying and postage), and attorney fees are deducted.

Managing heirs’ property is difficult because of confusion or disagreement among owners about how to equitably share the financial responsibilities regarding the property. For example, with so many co-owners entitled to the land, it is difficult to keep track of who is (or should be) paying the annual property taxes. If taxes are not paid, the local government may place a tax lien on the property and ultimately take the property from the owners and sell it to make up for unpaid tax bills. The tax office does not care who pays the taxes or who is on the title, only that the taxes are paid.

If someone fails to pay the property taxes on time, the tax assessor’s office usually sends out delinquency notices, then puts an ad in the newspaper for several weeks announcing the delinquency. Tax sales of property are then advertised in the newspaper or posted at the county courthouse. Tax sales are usually held in May, and the landowner has until the day before the sale to pay the taxes. Co-owners of the land may be unaware of the delinquency, have trouble contacting one another, or have trouble organizing or raising the funds needed to prevent a tax sale. In North Carolina, real estate and personal property taxes are billed annually. The tax office mails bills in July, and payments are due Sept. 1. Interest and fees accrue on unpaid bills (up to an allowed maximum percentage).

Keep Tax Payments Current

Make sure the tax assessor’s office has the current address of the person who will keep track of tax bills. Visit your county tax assessor’s office in person or online and ensure that property taxes are paid and current. If you are in default, be sure to pay the taxes and any fees and interest owed. If you have a dispute regarding the amount of the taxes, first pay the bill and then take steps to appeal the assessment.

Make a Last Will and Testament

Leaving a will that specifies the division of property prevents the formation or further division of heirs’ property. To avoid a clouded title, wills and estate plans should specify at the parcel level who should receive a property. Even if your share of the property is undivided, it is important for you to leave your interest in a will to those you want to receive it. By doing this, if steps are ever taken to clear the title, the search to find legal heirs to the property will eventually reach your desired heirs, who will have a legal right to the property.

Secure and Monitor the Property

If heirs’ property is unoccupied, it is important for at least one owner to check on the property regularly. Physically walking the property and buildings on the land is a way to discover any current or potential issues. Ensure that the boundary lines are well marked with paint and/or signs to prevent encroachment or trespass on the land. Consider installing boundary markers, fencing, or gates if none are present. Install “no trespassing” signs to deter unauthorized and uninvited visitors. Also, look for any unauthorized signs or notices that have been posted on the property.

Keep Records of Expenses

Keep track of all expenses related to the property, including taxes paid, landscaping costs, repair bills, or any improvements to structures or the land that would increase the property’s value. If a partition sale is forced, you can petition the court and may be entitled to a larger share of the proceeds.

Create a Family Tree

It is important to know who has a legal right to heirs’ property. To assist with this, construct a family tree. Find out whose name is on the deed and fill in each succeeding generation, including dates of death. Legal documents, such as birth and death certificates and marriage licenses, can help you create a family tree. Family bibles, letters, diaries, funeral programs, obituaries, and genealogy websites are other good sources of information. Genealogy information can also be sought at family reunions.

Enlist Legal Assistance

If your land ownership is being threatened, hire an attorney with experience in heirs’ property resolution and partition actions. While many cases can be settled out of court, few can be resolved without an attorney. An attorney can help you decide how to best protect your property for your family.

With some heirs’ property, clearing and unclouding the title may not be possible due to the number of heirs and family dynamics. Three common preferences for creating legal architecture in these instances are presented here, along with advantages and disadvantages (Table 3).

Tenant-In-Common Agreement

In a tenant-in-common agreement, co-heirs still collectively own an unallocated share of the land. In this sense, the legal structure pertaining to the owners remains unchanged, as each heir has equal rights and responsibilities to all the land. However, in a tenant-in-common agreement, heirs agree on a set of rights and responsibilities by which each owner will abide. This form of family or heir agreement might outline who will manage the property, how the land will be used and by whom, how the taxes will be paid and by whom, and how co-heirs can sell their interests and to whom.

Advantages:

Provides some protections against partition action. Establishes interfamily communication and agreement.

Disadvantages:

Any co-owner can still sell out their interest or can pass on their undivided interest via will or intestacy.

Trusts

Co-owners may choose to form a family trust. In this arrangement, a designated trustee, who may or may not be a family member, makes decisions regarding the property on behalf of and for the benefit of the beneficiaries (the remaining family members). The title remains clear because the trustee holds the title to the land, and it is not divided among heirs. Although the beneficiaries may change as families expand or heirs die, the land remains the trustee’s property. There is no confusion about who is to pay the taxes and who is responsible for maintenance. These responsibilities are stipulated in the trust agreement. The trust agreement also specifies how any income generated by the property is to be disbursed.

Advantages:

Because the title is clear and the trustee owns the land, it is less likely to be sold. The property may be preserved as family property longer than it would be if it were divided.

Disadvantages:

There may be restrictions on how the land may be managed or developed. It is important that owners carefully select a trustee and decide what the trust allows.

Limited Liability Corporation (LLC)

In a limited liability corporation (LLC), existing property owners form a company. The family owns the company and manages the property through their company. Typically, heirs are members in the business. This structure restricts the transfer of the property to people outside the LLC.

Advantages:

Transferring the property to the next generation is easier with a family LLC. Taxation is relatively simple because any income made from the property can be passed to the members individually. Members can then report the income on their own taxes. Federal gift and estate taxes are minimal. This structure also affords liability protection should a member of the LLC be sued.

Disadvantages:

LLCs require more effort and upkeep than other forms of ownership because they have very specific Internal Revenue Service requirements. Members must be sure not to put personal assets into the family LLC. The LLC is not a preferred way to transfer assets to a person under age 16.

The costs to clear a title can range from a few thousand dollars to tens of thousands of dollars. Estimating the cost can be difficult because many factors can affect the title clearance process. Efforts to find a resolution can vary in degree and scope. Although no one case of a title clearance is exactly like the next, there are a few common steps and costs. This section discusses those action steps that can add to expense of title clearance. Actual costs will depend on the complexity of title history, geographic location, professional fees, and easy of cooperation among co-owners. If liens have been placed against the property, owners will incur additional costs to clear the liens. Shopping around is key. It is wise to contact a few service providers and compare quotes from at least two professionals before selecting a service provider.

Conducting a Title Search

A title search is an investigation into the ownership history of land. It is a way to verify that the land is free of "defects," such as liens, easements, encumbrances, encroachments, or restrictions, which may “cloud” the title. A title company, attorney, or mortgage lender typically conducts the title search. The cost can range from about $75 for a simple search to $1,500 for a complex one.

Performing a Title Review

A title company or real estate attorney performs a title review. The title review costs range from a few hundred dollars to several thousand dollars, depending on the complexity of the title history.

Securing Title Insurance

Title insurance is a type of insurance policy that covers title issues or claims on a property not discovered in the title search. There are two types of title insurance policies. An owner’s title policy protects the owner from claims to ownership made by another party. A lender’s title policy protects a lender who has a mortgage lien on the property. Generally, a title policy costs from .04 percent to 1 percent of the property value. For example, if a property is worth $100,000, the title insurance could cost between $40 and $1,000.

Deed of Reconveyance

A deed of reconveyance is a document that transfers title from a mortgage lender to the borrower when the loan has been paid in full. The deed of reconveyance is recorded in the county clerk of court's property records to show that the borrower owns the property free and clear of the mortgage. The recording fee of $10 to $15 is paid to the county clerk of court. The deed is prepared by the lender holding the mortgage or an attorney. If it is prepared by an attorney or a title company, there may be an associated fee for the owner or owner-to-be.

Executing a Quitclaim Deed

A quitclaim deed is a document that quickly transfers property ownership. A quitclaim deed makes no guarantees or warranties as to the title of the property. This means that property transferred by quitclaim deed could be subject to liens or to ownership or boundary disputes. These deeds can even transfer absolutely zero ownership interest to the new owner if the previous owner has no ownership interest. The quitclaim deed cost can vary. The document can be free to execute if prepared by the heirs. If an attorney prepares it, fees can range from $100 to $600. Once a quitclaim deed has been prepared and executed, it must be filed in the probate court of the county in which the property is located. The cost associated with recording a quitclaim deed includes the filing and recording fee, starting at $10 for the first page and $3 for each additional page. Fees can vary by county.

Quiet Title Action

A quiet title action is a legal process to secure and enforce the rights that come with a complete and clear property title interest. Through this action, title defects can be cured and ownership disputes settled. An uncontested quiet title action is when an action is filed with no ownership dispute. A contested quiet title action occurs when one or more people or entities claim to have a different or competing ownership interest in the same property. Costs associated with a quiet title action include court costs, filing fees, and fees for an attorney if one is enlisted. A contested quiet title action is more expensive than an uncontested action. The costs of an uncontested quiet title action can range from about $1,500 to $5,000.

Success in an heirs’ property resolution may take different forms. Clearing a title may not be the best option for all parties. The heirs may decide not to clear title to a property for financial or cultural reasons. In can be unrealistic for a large number of heirs to unanimously agree to resolve the title. They may not be able to afford the high costs of clearing the title. In addition, owners may share a strong connection to the land and prefer to keep it in the family for any future heirs to return to and enjoy. If owners want to maintain their property as heirs’ property, an alternative to clearing the title is to "clarify" the title. Clarifying the title means to clearly establish the owners and make it known what fractional undivided interests they own. Although clarifying a title does not resolve all heirs’ property issues, it can help prevent future disputes and make eventual title clearance easier.

There are multiple ways to clarify the title, including affidavit of heirship, estate administration and probate, or quiet title action. Before clearing or clarifying title, a family tree should be completed, a title examination should be performed (which may require professional assistance), and the fractional ownership interests of each heir should be calculated. The latter may ultimately be determined by the heirs, a mediator, or the courts.

Affidavit of Heirship

An affidavit of heirship is a legal document that names and establishes the rightful heirs to property. An affidavit of heirship typically includes personal information about the decedent (deceased) and the heirs, such as their names and death dates. It should also include a brief history of the deceased person and original owner of the property, such as the identification of their spouses and children, and whether they died with a last will and testament. It should be signed by someone who is familiar with the facts stated in the affidavit and notarized. An affidavit of heirship is the first step that courts require to clear a title.

Estate Administration and Probate

The process of administering an estate involves distributing the deceased person’s property and ensuring that creditors are paid. Estates are distributed either according to the will or, if a will does not exist, according to state law. Probate is part of estate administration. There are a few steps in estate administration and/or probate:

Step 1: Appoint an executor (named in a will for a probate matter) or administrator (appointed by the court in an estate administration).

Step 2: For probate court, probate the will and distribute the assets according to the will.

Step 3: For estate administrations, distribute the assets according to state law.

Step 4: If necessary to fulfill obligations in Steps 1 through 3, inventory and catalog the assets (real estate, personal property, bank accounts, investments, and other valuables) and determine all their dollar values.

Step 5: Pay any mortgages, loans, credit card debts, and taxes within the six-month period in which creditors can collect outstanding debt against the estate.

Step 6: Submit a final report in writing to the probate court to approve the distribution and close the estate.

Quiet Title Action

A quiet title action is a lawsuit that seeks to have the court determine who owns the property and in what shares. A quiet title action may be initiated by any party who possesses an interest in the property. It does not always require that the plaintiff or parties have a deed, but a party may need to prove some type of ownership or possessory interest in the property. The goal is to begin to resolve claims and figure out who owns the property and in what shares. The quiet title action, when initiated, may be contested, which may delay any final resolution. Allowing potential heirs to be identified and contacted about their heirship can take up to a year, and the court must be satisfied that the very best effort was made to find all potential heirs. If contested, a trial will be held. If a judgment takes place, that judgment will ultimately be used to resolve the title defect. After the judge makes a decision, the judgment is recorded in the probate records.

It is often beneficial to hire an attorney experienced in heirs’ property cases to help clear a clouded property title. An attorney can also help avoid the creation of heirs’ property by preventing poor or incorrect wording or creation of an invalid will. For resolving heirs’ property issues, seek an attorney who focuses on succession or estate planning, wills, estates, trusts, or real estate. Choose someone who has successfully worked on heirs’ property cases in the past.

Comparison Shopping

Shop around to locate several qualified attorneys. Find and compare at least two or three attorneys before committing to one to represent you. Consult the American College of Trust and Estate Counsel (actec.org) or the National Association of Estate Planners and Councils (naepc.org) to locate attorneys in your area. Ask attorneys for referrals from past clients. Research each attorney. Make sure the attorneys are licensed to practice where the property exists. If the property is in North Carolina, search for the attorney’s credentials on the North Carolina State Bar website (ncbar.gov). Also, search the internet for client reviews.

Questions to Ask Prospective Attorneys

Expertise and Experience

1. How many heirs’ property cases have you handled?
2. What percentage of your practice involves estate planning?
3. What is your success rate in resolving heirs’ property cases?
4. Can you provide references from clients with cases similar to mine?

Case Management

1. What do you see as potential outcomes for my case?
2. How will you communicate with me and how often?
3. What documents will be prepared and how long will it take?
4. What are some things that could delay or derail my case?
5. What should I do to prepare for the case?
6. How do you manage cases with multiple heirs, especially if some are uncooperative?

Costs and Billing

1. How will you ensure that billing is transparent, clear to understand, and fair?
2. What is the range or estimate of my total bill and what would cause the bill to change?
3. Do you offer payment plans or contingency fee arrangements?
4. Are there options or resources that you are aware of to help clients cover costs to clear a title?

Ethics and Conflicts

1. Have you ever had an ethics or legal board disciplinary action taken against you?
2. Do you have any potential conflicts of interests that I should know about?
3. How do you ensure clients' confidentiality and protect their interests?
4. Do you know anyone involved on either side of my case or any of the service professionals such as appraisers or surveyors?
5. Do you now or have you ever represented anyone who might be involved in this case?

Q1. Does a clouded title prevent heirs’ property from being sold or lost outside the family?

No matter how many parties are entitled to joint ownership of the land, even one heir or co-owner can demand that the land be divided or sold. Creditors and government entities could also force a sale to collect funds that they are owed.

Q2. Can I use heirs’ property as security for a loan?

Banks and other financial institutions require collateral to protect them if loans are not repaid. Through a mortgage, owners transfer the title to the bank. Because co-owners each have an undivided interest in heirs’ property and are not legal owners of the entire property, they cannot transfer the title.

Q3. How could heirs’ property status interfere with hiring someone to perform repairs or improvement to the property?

Many home repair and maintenance providers, such as roofing or plumbing experts, will not agree to work on heirs’ property. Typically, if a homeowner does not pay the service provider in full for any reason, that service provider could place a lien against the property to recoup the balance owed. Without a clear legal title, placing a lien on the property is nearly impossible. Service providers avoid working on heirs’ property to limit the risk that they won't be paid.

Q4. We own 10 acres and there are 10 heirs. Do we each own 1 acre?

Based on laws of intestate succession, each owner holds a fractional interest in the whole of the estate. If the entire property is sold, each owner receives payment based on their percentage of the property's value. If the land remains undivided, all owners get equal access to the entire property. Because land values vary within a given parcel due to road access or physical characteristics, such as a swamp, it cannot be assumed that each acre has equal value.

Q5. If we have had a survey done of our family land, is this considered proof of ownership?

No. A survey confirms only the physical dimensions of the property. It does not apportion ownership of the parcel(s) to anyone; only a will or deed can do that. However, if you decide to clear the title to your land or have issues with adverse possessors, having the land surveyed is a good idea.

Q6. There is timber on my family’s heirs’ property. I live on the land and pay the taxes. Why don’t I own the timber outright?

Most companies insist that you have a clear title to the land before they will purchase the timber and harvest it. Otherwise, if they purchase timber on heirs’ property but pay only one co-owner, they are liable for failing to ensure that all owners are paid. Paying taxes only satisfies the tax assessor’s office. Tax collectors are concerned only with receiving taxes due, regardless of who pays them. Because all co-owners are jointly responsible for ensuring that taxes get paid, the assessor’s office assumes that whoever is paying the taxes is doing so on behalf of the rest of the heirs. Heirs who do not help pay the taxes do not give up any rights as co-owners. Those paying the taxes don’t acquire additional property rights.

Administrator’s Deed

A deed drawn up by an administrator (appointed by the probate judge) for land left by someone who has died intestate.

Clouded Title

An encumbered land title or one with an outstanding claim (for example, land with a lien against it or for which ownership is not documented).

Co-Owner

Someone who shares ownership of something with one or more other people.

Deed of Reconveyance

A document transferring title from a mortgage lender to the borrower when the loan has been paid in full.

Encroachment

In real estate, an encroachment is when one property owner builds or develops on their neighbor’s property without permission. If not challenged by the property owner, encroachment may allow the trespasser to make claims on the property, resulting in adverse possession.

Encumbrance

A claim against a property, for an unpaid debt, by someone who is not an owner of the property. Encumbrances can hinder someone from transferring a property or restrict how the property can be used.

Fractional Interest

Fractional interest represents how much of an asset a person or party owns. In real estate, when multiple people or parties jointly own an asset, each person’s fractional interest is a percentage of the total.

Guardian Ad Litem

Someone appointed by a court to make decisions on behalf of a minor, an incompetent person, or an absent party.

Heir

A person legally entitled to property upon that person’s death; a person inheriting and continuing the legacy of a predecessor.

Heirs’ Property

A legal term used to refer to the informal transferring of land ownership to descendants. It usually occurs when a landowner dies without leaving a will. Ownership is determined informally without being probated, often for generations, leaving the legal title unresolved.

Intestate

Refers to the circumstance of dying without a legal will. When a person dies in intestacy, determining the distribution of the deceased’s assets becomes the responsibility of a probate court. An intestate estate also results when the will presented to the court is deemed to be invalid.

Intestate Succession

The manner in which property that belonged to someone who has died without a will is disbursed.

Lien

A claim against a property or person due to failure to repay a debt. The party who is owed money, also called the lienholder, can collect their money from the property’s value, if needed, in order to satisfy the debt.

Parcel

A specific area of land with clear boundaries. This term can refer to lots, blocks, tracts, and other property located within a boundary.

Partition Sale

Forced sale of property that is held by more than one owner. Each owner receives a portion of the money collected by the sale based on their percentage of interest.

Probate

A process in which a court confirms the validity of a will and allows other people the option to challenge the will.

Quiet Title Action

A legal process to secure and enforce the rights to a property with clear title. The process can be used to clear title defects and resolve ownership disputes.

Quitclaim Deed

A document that quickly transfers property ownership but makes no guarantees or warranties as to the title of the property.

Tax Deed

A deed issued by a court that transfers a title to someone who has purchased land via a tax sale.

Title Defect

Any circumstances surrounding a property title that could prevent or slow an owner’s ability to claim or sell the property. Examples of title defects are liens, boundary disputes, encumbrances, encroachments, illegal or unknown deeds, missing heirs or undisclosed owners, bankruptcy, or legal judgments against the property.

Tax Lien

A legal claim imposed against the property of a taxpayer who has failed to pay the taxes owed to the government. The lien may allow the government to seize or sell the property to satisfy the tax debt.

Tax Sale

A court-ordered sale of land to recover unpaid taxes on the property.

Title

A legal document that provides evidence of ownership of a property.

Title Insurance

A type of insurance policy that covers title issues or claims on a property not discovered in a title search. It may be used to insure the owner’s title or a lender’s interests in a mortgage. It protects the buyer of the property should the title later be shown to be defective, by paying out any damages incurred due to the defective title.

Title Review

A review of a title search is a process in which a title company or real estate attorney examines the results of a title search to ensure that all due diligence was made to establish clear title.

Title Search

An investigation into the ownership history of land. The process is intended to verify ownership and identify any liens, encumbrances, or other title defects.

Hunter, M., A. Sorensen, T. Nogeire-McRae, S. Beck, S. Shutts, and R. Murphy. 2022. Farms Under Threat 2040: Choosing an Abundant Future. American Farmland Trust. ↲

North Carolina Department of Agriculture & Consumer Services. 2024. "Economic Impact of N.C. Agriculture and Agribusiness Jumps to $111.1 Billion; Second Straight Year of Strong Growth." News Release. May 18, 2024. ↲

This guide is intended to provide North Carolina heirs’ property owners with basic information on landowner rights and responsibilities. It is not a substitute for professional legal advice or assistance.

This publication is adapted from Heir Property in Alabama by Janice Dyer, formerly with Agricultural Economics and Rural Sociology, Auburn University; Patrick Kennealy, former Extension Program Associate, Family and Consumer Sciences, Auburn University; and Evelyn Crayton, former Extension Assistant Director, Family Programs, Auburn University.