By: Danaya C. Wright*
Abstract
The problem of heirs property is tragic and endemic, especially in minority and low-income communities where family homes and farms are lost because of fractionation through intestate inheritance and failure by heirs to timely probate the land and clear title. But reformers have worked diligently to address the problem by passing the Uniform Real Property Transfer on Death Deed Act, which provides a much-needed mechanism for landowners to avoid probate through execution of a beneficiary deed for real estate. Reformers have also passed the Uniform Partition of Heirs Property Act, which tries to limit the harms from forced partition actions when co-owners cannot agree on management or when a successor purchases one heir’s share in valuable land and then forces a sale, usually at below-market terms. But between these two remedies is a great chasm for all the properties that are already in heirs property status and for which probate procedures and property rules disadvantage the heirs, penalizing them for managing the property. Property tax rules, the law on adverse possession against co-tenants, marketable title acts and statutes of limitations, and a variety of other substantive and procedural reforms could be enacted to help those heirs currently grappling with heirs property issues. This Article identifies numerous barriers heirs face to resolving heirs property title issues and draws from recent reforms in similar areas to build a case for a new uniform probate act. The Article then provides a sample uniform probate act that would ameliorate the centuries of harm done to vulnerable homeowners by intestacy laws and probate procedures.
* T. Terrell Sessums and Gerald Sohn Professor in Constitutional Law, University of Florida, Levin College of Law. I would like to thank Jon Mills and Dean Laura Rosenbury for their support of this research. I would also like to thank Joan Flocks, Carla Spivack, Phyllis Taite, Lee-ford Tritt, Naomi Cahn, Susan Gary, Nick Piska, Victoria Haneman, Bridget Crawford, Allison Tait, Deborah Gordon, Karen Sneddon, Casey Ross, and Bill LaPiana for their comments on this article. I also owe a debt of gratitude to Thomas Mitchell for all of his work on this subject.