Knowledge of ‘heirs properties’ issues help families keep, sustain land

Sarah Farmer

Southern Research Station

October 8, 2021

A picture of a dark looking cabin nestled deep in a forested area. — There are many hurdles to managing forests located on heirs’ property. Heirs’ property seems to disproportionately affect African Americans but is also found in Appalachia, Hispanic communities along the U.S.-Mexico border, and Native American communities. (USDA Forest Service photo by Sarah Farmer)

Children often inherit their parents’ homes and land. But what if there is no will or estate plan? In such cases, state laws determine how real estate and other assets are divided. In most cases, property is passed to heirs in split shares.

“Without a will, property is typically passed to heirs with a clouded title,” said Forest Service scientist Cassandra Johnson Gaither. “Because each heir owns a proportional stake in the property, all heirs must agree on major decisions affecting the land. And with every generation, the number of heirs can grow.”

A picture of a person standing next to new growth trees, pointing and looking at the trees. — Center for Heirs’ Property Preservation forester Sam Cook talks about the young longleaf pine stand on a family’s forestland in South Carolina. Forest Service researchers are working with the center to help families keep their land and manage it sustainably. (Photo courtesy of Sarah Hitchner, University of Georgia Athens)

The issues faced by these owners are many, including that the land often remains in the name of the deceased. Because of legal complexities, timber companies usually refuse to harvest from heirs’ property. Land owned in common by multiple heirs cannot be used as collateral for grants or loans unless all heirs assume the loan. After a natural disaster, heirs’ property owners may be unable to get financial assistance. Heirs’ property owners also are not eligible for many state and federal land improvement programs.

One of the most discussed problems of heir’s property ownership is partition sales. These can occur when a single heir wants to resolve the heirship legally by bringing a lawsuit to partition the property. Partition actions can be initiated not only by blood relatives but also by someone outside the family who bought one of the fractional interests of a family member and is now considered a co-heir with all of the rights and responsibilities of blood relatives. In some instances, heirs who do not want to divide the land may not even know that another heir has sold their stake.

Eighteen states have enacted the Uniform Partition of Heirs’ Property Act, which aims to reduce exploitative partition sales although it is not certain how effective this law has been. In states that have not enacted this law, it may be more likely that heirs’ properties are sold at below market rate.

A picture of an old Union 76 gas station building. — Heirs’ property is often the site of historic structures, such as this abandoned family store in rural North Carolina, that continue to represent important heritage and valuable reminders of a complex past for families and communities. (USDA Forest Service photo by John Schelhas)

Johnson Gaither enlisted Forest Service ORISE Fellow Rebecca Dobbs to identify heirs’ property parcels in the U.S., while protecting the privacy of individual landowners. They use geospatial methods to identify heirs’ property indicators (such as deceased, interest, family of, and heirs’) to spot potential heirs’ properties in aggregated parcel records.

In 2014, Johnson Gaither and John Schelhas, researchers at the agency’s Southern Research Station, began working with the Sustainable Forestry and African American Land Retention Network. Through a series of interviews, they learned that some African American forest landowners were not well informed about heirs’ property ownership issues or forest management opportunities. They often received unjustly low financial returns from timber harvests. African Americans may own a disproportionately high amount of heirs’ property.

Heirs’ property ownership is thought to be prevalent in central Appalachia, and in colonias on the U.S.-Mexico border. In Oklahoma, Native American trust lands have become fragmented over generations, which leads to similar issues as heirs’ property.

A picture of a field with brown-colored grass. — Science from the Southern Research Station is leading to a broader understanding of heirs’ property. The work is helping heirs’ property owners keep their land and manage their forests sustainably. USDA Forest Service photo by Shelley Griffin.

Through their work, Johnson Gaither and Schelhas identified several practices that could help landowners: connecting them with forestry professionals; developing forest management plans; meetings between landowners to exchange information and build trust; and providing guidance on taxes, certification and easements.

“We need to save it for our family. Also, for African American families and culture,” said a female forest landowner in South Carolina. “[Our family] bought the land in 1890...I don’t have any financial gain, but I have an interest in the legacy...All the sunshine, sweat and tears. That’s why I’m hanging in there.”

If you have inherited land without a clear title or documented legal ownership, the Heirs’ Property Relending Program can help resolve heirs’ land ownership and succession issues on agricultural land. Read the Farm Service Agency’s fact sheet for a quick glimpse about heirs’ property guidance on working with USDA.