After the Civil War, African Americans were able to legally purchase land for themselves. Due to laws against teaching slaves to read and write and the Jim Crow laws that restricted access to legal assistance, many landowners did not have written wills. This resulted in “heirs’ property,” land held in common by the descendants (or heirs) of someone who died without a will, or whose estate was not offered for probate.

While some co-owners may enjoy the flexibility of heirs’ property and the sense of community it fosters, the title to such property is usually confusing. There are several disadvantages to retaining land under a confusing title that is not clear. An heirs’ property owner may not even be aware that they own an interest in the land, and there can be confusion about ownership. Partition sales often lead to non-family members buying the land. Holding land as heirs’ property is one of the leading causes of land loss among African Americans (Dryer 2008).

It is important to be aware of the risks involved in owning heirs’ property, to know your rights as a landowner, and to take the proper steps to protect your land.

Heirs’ property is … land that is held as an undivided interest by the descendants of a landowner who died without a will or whose estate was not probated.

Is owning heirs’ property risky? Heirs’ property, sometimes referred to as co-tenancy, is legally the least stable form of ownership, and is considered risky.

Can I fix this? Yes, you can prevent your property from being taken through partitioning by developing an appropriate legal agreement in consultation with an attorney.

Timber

Most timber companies will not purchase timber from land without a clear title.

Improvements

Any improvements made to the land become property of all heirs entitled to the land, including those who performed maintenance on the land and those who did not.

Leasing

It is difficult to lease the land for agricultural or recreational purposes.

Partition Sales

Any co-owner can force a sale to obtain their share.

Borrowing

The land cannot be used as collateral or to borrow money from a bank.

Federal and State Funding

Owners may not be eligible for cost share programs or disaster relief funds (Farmer 2021).

Heirs’ property is always vulnerable to a partition sale. When there is an attempt to divide land among the owners through a “partition-in-kind” and there is no consensus, the court may order sale of the land. Co-owners (including anyone who bought an interest from one of the heirs) can initiate a sale. A co-owner who decides to sell your family’s land does not need your consent or the consent of the other heirs before seeking such a sale and can force a court-ordered sale of the land to the highest bidder (Uniform Law Commission 2023).

How Can I Prevent This? *

Family Trust

Through a family land trust, co-owners form a trust, which includes a clear title.

Limited Liability Corporation

The family owns the company that owns the land. Family members can choose to sell their interests, but only to the company or other family members.

Partition-in-Kind

This is a legal process through which land is physically divided up among co-owners based on an agreement of fractional interests (Gragg 2023).

* All options should be pursued in consultation with your co-heirs and an experienced attorney. ↲

Dryer, Janice. 2008. “Heir Property in Alabama.” Alabama Cooperative Extension Service, HE-852. ↲

Uniform Law Commission. 2023. Partition of Heirs Property Act Summary. ↲

Farmer, Sarah. 2021. “Knowledge of ‘Heirs Properties’ Issues Help Families Keep, Sustain Land.” Forest Service, US Department of Agriculture, Southern Research Station. ↲

Gragg, Mavis. 2023. “Suggestions for Heirs’ Property Owners.” Vermont Law & Graduate School, Center for Agricultural & Food Systems. ↲

Content in this publication has been excerpted, adapted, and used with permission of the Alabama Cooperative Extension System (Alabama A&M University and Auburn University). All rights to the original material are reserved by the Alabama Cooperative Extension System.

Author

Kurt Smith

Assistant Professor of Forestry and Extension Specialist (Land Retention), Department of Forestry & Environmental Resources

Published by

NC State Extension