Created by faculty and students at VLGS’s Center for Agriculture and Food Systems, a new series of factsheets aims to prevent the loss of land owned as “heirs’ property.”
In some cases, when a property owner dies, their wishes for their property are outlined in their will or other estate planning measure, usually naming a specific heir or group of heirs.
But what happens when property owners don’t have an estate planning strategy? When property ownership is passed along via inheritance, in the absence of a will or other decree, it’s known as heirs’ property.
Heirs’ property is a complicated legal issue that disproportionately affects Black communities in the United States, due to the racial injustice inherent in U.S. history.
The Center for Agriculture and Food Systems (CAFS) at Vermont Law and Graduate School (VLGS), in partnership with the Federation of Southern Cooperatives and the Policy Center for Socially Disadvantaged Farmers and Ranchers at Alcorn State University, recently released 13 new factsheets that break down heirs’ property laws, each one tackling a Southern state in which the issue is prevalent.
A resource developed for CAFS’s Farmland Access Legal Toolkit, the factsheets were authored by CAFS Senior Staff Attorney and Adjunct Professor Francine Miller, with the support of VLGS students Heather Francis, Constantin Mathioudakis, and Suhasini Ghosh, as well as Legal Food Hub Fellow Andrew Marchev. They are intended for lawyers, nonprofits, extension agents, and other professionals working directly with heirs’ property owners in their state.
Though for now the factsheets focus on Southern states, Miller feels a connection to the work all the way from Vermont.
“I come from having worked on a lot of social justice issues in my life. Coming to CAFS from New York City, I was very involved in urban agriculture where I was introduced to the concepts of food justice and food sovereignty,” she said. “Working on heirs’ property has been a natural outgrowth of the work I had been doing.”
While circumstances vary state to state, there are a few key points about heirs’ property that apply across the country. We sat down with Miller to talk about some of the key takeaways to understand about this underreported, but hugely impactful, legal topic.
Legal issues surrounding heirs’ property disproportionately harm Black communities and exacerbate the racial wealth gap.
After emancipation in the late 19th century, some Black families were able to purchase land—but had little access to legal services or cultural precedent to set up estate planning, said Miller.
When the landowner died without a will, or “intestate” under the law, their property would have been inherited by their children, siblings, or other heirs, each with a claim on the whole property. Each of these “tenants in common” would have had cloudy title to the property, because the deed remained in the decedent’s name.
Without a clear documentation of ownership, generating wealth through the sale or lease of the land becomes extremely difficult. While many families can build equity in real estate, sell commercial or mineral rights, or lease out their property, these actions are significantly more difficult with a cloudy title.
This reality has contributed significantly to the wealth gap between white and Black populations, with Black families on average holding 10 percent of the wealth of white Americans.
“It’s a really hard way to own land and build anything with it,” said Miller. “There’s a huge wealth gap between African Americans and white people in America, and part of that is based on the ability to generate wealth from owning your land.”
Lack of clear title on property can lead also to difficulty securing mortgages or financing, participating in USDA programs, or securing commercial contracts, further reducing the ways that heirs can build wealth or even maintain ownership of their property.
In some states, one owner can force the sale of the land.
According to Miller, heirs’ property is not only a complicated way to own land—it’s also a vulnerable position.
“Any person who owns interest in that land can sell their interest to an outsider,” said Miller. Anyone who is sold an interest in the property can file what is known as a partition action, which often leads to a court-ordered sale of the land.
“At auction, everybody gets pennies on the dollar for what the land is actually worth, and anyone can buy that land at auction to then develop for real estate, sell all the timber off it, or whatever they want to do,” said Miller. “The people who owned it, whose family it has been in for generations, lose the land, the value of the land, and its legacy.”
The ability to force the sale of heirs’ property through partition has contributed to an enormous amount of Black land loss in America, with Black-owned land dropping from 16 million acres in 1910 to under 3 million acres today.
Laws regarding heirs’ property vary from state to state.
“Each state has different laws regarding intestate succession and who gets what,” said Miller. USDA officials, extension agents, loan officers, and even lawyers may not be up to date on their state’s individual intestate succession laws. Lack of understanding can make a complicated situation even more difficult.
According to Miller, it’s “really helpful to have additional legal educational materials,” like her new factsheets, which can help provide a clear understanding of the law.
Kara Woods, Research Analyst with Alcorn State University’s Policy Center for Socially Disadvantaged Farmers and Ranchers, who partnered with CAFS on the publication of the fact sheets, explained the need for additional resources:
“Heirs’ property is a complex issue that differs by state and even by county. The factsheets not only provide an overview of what heirs’ property is, but how to prevent the cycle of heirs’ property.”
In addition to differing laws, resources, tax sales, and regulations lack uniformity across regions, said Woods. “The fact sheets give accessibility to a high-level issue and provide knowledge to extension staff, community-based organizations that are addressing the issue, and heirs’ property co-owners at large.”
However, certain laws are being enacted to protect heirs’ property owner rights.
The Uniform Partition of Heirs Property Act (UPHPA), written by the Uniform Law Commission in 2010, has begun to provide due process protections for heirs’ property owners in the 22 states that have enacted it.
“[The Act] protects against some of the negative effects of partition sales, requiring instead that the court must give the land a fair appraisal and sell at a public sale rather than auction,” said Miller. “The heirs also get the right of first refusal on the land, giving them a chance to buy it before an outsider can.”
At the federal level, the 2018 Farm Bill required the USDA to develop rules allowing heirs’ property owners to obtain identification numbers that are required for participation in Farm Service Agency programs. The Federal Emergency Management Agency also developed guidelines for its agents to accept documentation from heirs’ property owners to qualify for disaster relief funding.
Heirs’ property and its impacts continues to gain recognition as a critical legal issue.
In late February, Miller presented the fact sheets at a training in the Washington, D.C. area, entitled “Understanding Heirs’ Property at the Community Level.” Designed for land-grant professionals, this “train the trainer” event, hosted by the Southern Rural Development Center and the Policy Center for Socially Disadvantaged Farmers and Ranchers, was meant to equip extension agents with the tools necessary to deal with heirs’ property accurately and compassionately in their states.
In collaboration with the Federation of Southern Cooperatives (FSC) and HeirShares, CAFS and Miller are also co-hosting an heirs’ property lawyer network for those working providing direct services to heirs’ property owners. This network has expanded to about 35 lawyers across the South, providing education, training, and a resource network to support lawyers dealing with the thorny issues that arise in these cases.
While the topic is gaining traction, Miller and CAFS student collaborators aren’t finished.
“We couldn’t have done it without the students, and there’s so much more to be done,” concluded Miller. “Every time I present on this issue and do a training, there’s another state [where heirs’ property is prevalent] that’s not included in the fact sheets.”
Miller hopes to work with CAFS interns and students this summer to expand the factsheet database, as well as develop additional scholarship to support more policy advocacy.
For more information on heirs’ property as well as the downloadable fact sheets, visit the Farmland Legal Access Toolkit at farmlandaccess.org/heirs-property.
*The Eadys, pictured in the image, have 75 acres of property in Newton, Georgia, and are farming corn, peanuts, peas, watermelon, and animals (cows and goats). They are working on clearing title to their land and resolving all ownership issues so that the land can stay in the family.