Heir Property
Robert A. Tufts
Ph.D, J.D. LLM (tax)
Attorney and Associate Professor Emeritus
Alabama Agricultural Extension Service
tuftsra@aces.edu
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How is heir property created?


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There are only three documents that will transfer
legal ownership of property—a will, a deed, or a
court order (they have to be recorded in the
probate judge’s office)
Heir property is created when
• a will is not probated, or
• an estate is not administered
Legal title to the land remains with the decedent
and equitable title is in the heirs, thus “heir
property”
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Who are “heirs”

§43-8-1. General definitions (Code of Alabama,
1975)
• Heirs. Those persons, including the surviving
spouse, who are entitled under the statutes of
intestate succession to the property of a decedent
• Heirs cannot be determined until the death of the
decedent
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Why is heir property a problem?

If you do not have legal title to the land
• It cannot be used as collateral to borrow money
• All decisions regarding the use of the land, such as
•

selling timber, must be agreed to by all entitled to
the land
Owners probably won’t qualify for federal assistance
Not having legal title will not prevent the property
from being sold; so, having a cloud on the title will
not keep the property in the family
4
Comments from a recent study

A Place to Call Home: Cultural Understandings of
Heir Property among Rural African Americans by
Janice F. Dyer and Conner Bailey published in
2008 in Rural Sociology 73(3):317-338
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Lack of a will is the typical cause
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A 1980’s study revealed that about 80% of African
American rural landowners do not have wills
Reasons cited included:
• Distrust of the legal system
• Lack of education
• Superstition
• Reluctance to make decisions that may cause
friction between family members
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Challenges

Farmers operating on heir property tended not to
invest in improvements that would increase the
productivity or value of the land since such
improvements may encourage other co-owners to
capture part of the increased value by selling their
share of the land
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Refuge and kinship
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For rural African Americans in the South, heir
property represents a form of sanctuary and a
place where they can live surrounded by family
Working the land and sustaining a “homeplace”
was a way families could stay connected,
construct a sense of place, and perpetuate a
shared family history
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Comments from Interviewees
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The advantage of heir property is that whoever
wants to put a home here can; they don’t have to
look for property anywhere else
For this owner the opportunities she has given up
are worth the flexibility she and her family
members enjoy
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Comments from Interviewees
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Nine children had an interest in their fathers land
and disputes have continued because the siblings
cannot agree on the use of the land
There are too many co-owners of that land to
count, and some of the folks living on the property
aren’t even legitimate family members. Once it
gets into that third generation it’s almost impossible
to divide it up
Decisions to leave the land undivided made the
property economically useless as a form of
collateral
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Comments from Interviewees
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
One owner’s home was damaged by multiple
hurricanes, but when she tried to get money from
governmental housing assistance programs to
repair the home she was ineligible because the
home was built on heir property
Heir property all too often generates conflict
among family members and those problems
become more serious as the number of heirs
increases
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Who has an interest in the
property?

All of the decedent’s heirs
• The interest is not joint with right of survivorship
• The last child alive does not own the property
• A deceased child’s children acquire an interest in the
property
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Intestate Succession

The heirs at law of a deceased person are those
who, in the absence of a will, are appointed by law
to inherit his real estate. Hatter v. Quina, 216 Ala.
225, 113 So. 47 (Ala. 1927)

The rule is to trace the title back in the ascending
line to the person last seized, in determining from
whom the estate came, and the nature thereof.
Purcell v. Sewell, 223 Ala. 73, 134 So. 476 (Ala. 1931)
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Alabama’s Plan for Your Estate
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Spouse but no children
• Spouse: first $100,000 plus half of the remainder
• Decedent’s parents: the other half
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Alabama’s Plan for Your Estate
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Spouse and children of that marriage
• Spouse: first $50,000 plus half of the remainder
• Children: the other half
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Alabama’s Plan for Your Estate
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Spouse and children of previous marriage
• Spouse gets half
• Children get the other half
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Alabama’s Plan for Your Estate
• Regarding the limitations of statute as to kin of the
•
"same degree," half-brothers will inherit before a more
remote degree of the full blood. Purcell v. Sewell, 223 Ala.
73, 134 So. 476 (Ala.1931).
In wife's action to impose a constructive trust for her
benefit on proceeds of a recovery for the wrongful death
of the parties' son, the fact that the father abandoned
his son would not bar the father's right to inherit under
descent and distribution; absent a statute, courts may
not circumvent the statutory distribution scheme on the
grounds the recipient is unworthy. Pogue v. Pogue, 434
So. 2d 262 (Ala. Civ. App. 1983).
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Alabama’s Plan for Your Estate

No spouse but children
• To children equally
• By representation
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By
Representation
(deceased)
Son
Daughter
Dad
(deceased)
Spouse
Son
(deceased)
Spouse
Grandchild
Spouse
Grandchild
Grandchild
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Alabama’s Plan for Your Estate

No spouse or children
• Parents if either survive decedent
• Issue of parents, e.g. brothers and sisters or their
•
•
children
Grandparents or their issue, e.g. uncles and aunts,
nieces and nephews
The State of Alabama
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Joint Management
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Commonly owned property is managed jointly by
the cotenants. This does not mean that each one
must participate in management but only that each
has an equal right to manage or control how the
property is used.
Any disputes must be worked out among the
owners (not the court)
If the cotenants cannot agree on management, the
remedy is partition
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Title can be “cleared” in Circuit
Court

File a lawsuit to “quiet” title
• The judge will take testimony to determine the
•
•
family tree
Once the family structure is known, the judge
applies the rules of intestacy to determine who the
owners should be
The judge will issue an order “vesting” title in the
owner and have the order recorded in the probate
judge’s office
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Partition
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Owners may voluntarily partition the property by
dividing it physically or selling it and sharing the
proceeds
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§35-6-20. Jurisdiction of circuit
court to divide or sell for division

The circuit court shall have original jurisdiction to divide
or partition, or sell for partition, any property, real or
personal, held by joint owners or tenants in common
• Partition of land between joint owners or tenants in
•
common is a matter of right, but the alternative right to
have land sold for division is statutory, and is conditioned
upon averment and proof that the property cannot be
equitable divided or partitioned among them
The proceedings under this section require a judicial
determination that the land cannot be equitably divided
before there can be an order requiring a sale for division
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§35-6-20. Jurisdiction of circuit
court to divide or sell for division
• Partition will be ordered so as to give benefit of
•
•
improvements to him who made them, if practicable
to do so
Circuit courts have the power to award owelty under
this article in certain cases if such would best
promote the interests of the parties. Owelty should
be sparingly used and with great caution.
Judgment creditor of owner of interest in real estate
cannot maintain action to compel sale
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§35-6-100. Court to provide for purchase
of filing joint owners’ interest

Upon the filing of any petition for a sale for division of
any property . . . the court shall provide for the purchase
of the interests of the joint owners or tenants in common
filing for the petition . . . Provided that the joint owners or
tenants in common interested in purchasing such
interests shall notify the court of same not later than 10
days prior to the date set for trial of the case
• The purpose of this section is to allow cotenants who wish
to preserve their property intact to purchase the interests
of any cotenants wishing to sell the property for division,
thereby preventing the passing of title to a stranger at a
forced sale
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Sale proceeds

Proceeds of the sale are divided among the heirs
according to their interest
• Net proceeds are the remaining funds available
after court costs, the expenses of conducting the
sale and attorney’s fees (typically 10%) are paid
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Basic Documents in an Estate
Plan
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Advance directive for health care
Power of attorney
Distribution plan
• Will
• Trust
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