By Riley Kelly, PBI Intern
Many families in the United States face heirs’ property issues, where land is passed down without a formal will, leading to unclear ownership and legal challenges. Heirs’ property challenges disproportionately affect communities of color, especially Black families in the South, limiting their ability to build wealth through homeownership. Pro bono attorneys can play an essential role working with legal services organizations to help these families navigate legal complexities, secure their property rights, and contribute to closing the racial wealth gap by preserving generational assets.
What is heirs’ property? Heirs’ property refers to land that has been passed down generationally in the absence of a will or other legally binding document to prove ownership. When an individual dies without a legally binding will, all their assets, including their property, go into probate. The property is often passed down for generations without going through the legal process to formally transfer title. Today, heirs’ property in the United States is estimated to make up well over $32 billion dollars, and potentially up to $450 billion, in real estate.
Why does heirs’ property matter? With no clear legal title, proving ownership of heirs’ property is difficult. In practice, multiple heirs with no clear or marketable title to a property often results in in complex legal issues and unstable homeownership. Heirs’ property is one of the least stable forms of homeownership and is a major barrier to accessing the wealth-building benefits of homeownership.
Clear title of ownership is often an eligibility requirement for federal programs that promote wealth building and homeownership. Heirs’ property owners are often ineligible for commercial and government loans where property is the collateral. And heirs’ property may not qualify for federal and state homestead exemptions, adding thousands to property tax bills annually and increasing the likelihood of tax foreclosure on these properties. Without clear title to a property, heirs might be unable to sell it, borrow against it, or prove it is theirs in legal disputes and government documents.
Properties that have many heirs with unclear ownership face the risk of partition – a court-ordered process where any heir can force a sale or division of the property. In cases where a property cannot be physically divided, such as in urban areas, heirs are often forced sell the property entirely and are especially vulnerable to developers and speculators attempting to buy the property below market value. Unclear ownership among multiple heirs also can create disputes among family members and detrimental impacts on heirs’ finances and communities more broadly.
Heirs’ property has a disproportionate impact on Black Americans. Heirs’ property disproportionately impacts Black Americans, particularly in rural communities throughout the South, contributing to significant land loss among Black Americans over the past hundred years. From 1907 to 2007, Black Americans lost 80% of their rural and agricultural land. In 1920, Black families owned 14% of U.S farmland, but this land was left informally without wills or trusts as Black Americans were either denied access to the legal system, did not trust it, or could not afford it. As a result, Black farmers now own only 0.52% of U.S. farmland.
Today, it is estimated that one-third of all Black-owned land in the American South is heirs’ property, representing 3.5 million acres worth about $28 billion. Heirs’ property also disproportionately affects Hispanic populations in the Southwest, Indigenous communities, and low-income communities throughout Appalachia. Historical distrust has caused many to turn to informal methods of property ownership. For example, 77% of Black Americans and 82% of Hispanic Americans do not have a will in place, compared to 61% of white Americans.
Heirs’ property issues impact not just rural farmland, but also urban areas. Heirs’ property in urban contexts is important because with increasing property values, some heirs’ properties in cities are worth $1 million or more. While many cities offer property tax relief programs to homeowners, heirs’ property owners may not qualify since they do not possess clear title to the property, resulting in skyrocketing property taxes and increased risk of foreclosure. Resolving heirs’ property issues is also important for effective urban planning, as clear property ownership allows for targeted development strategies.
Pro Bono programs addressing heirs’ property issues offer an opportunity to take action to close the racial wealth gap. Pro bono programs are vital in addressing heirs’ property issues, particularly impacting Black, Hispanic, Indigenous, and low-income homeowners, hindering intergenerational wealth transfers. Economists estimate that involuntary land loss since 1910 has cost Black families billions of dollars. Resolving these complex property issues is crucial for preserving generational wealth and narrowing the racial wealth gap. These programs also assist heirs in navigating costly and confusing probate processes, providing essential legal aid and empowering families to secure clear property rights and economic stability.
Below is a summary of some states with pro bono heirs’ property programs, highlighting efforts to address legal challenges and preserve generational wealth:
- Alabama: The Uniform Partition of Heirs Property Act took effect in Alabama on January 1, 2015, providing a more equitable system for partition actions. It allows heirs to purchase interests from other heirs wishing to sell and mandates professional property appraisals for fair market value. A 2021 study that included interviews with Alabama attorneys noted that heirs’ property owners typically cannot afford legal advice or genealogical research, “much less the funds to retain an attorney.” Legal Services Alabama has responded to need by providing free legal help to qualifying individuals affected by heirs’ property
Pro Bono Institute staff recently attended the 2024 Equal Justice Conference where pro bono lawyers learned about heirs’ property from organizations including Legal Services Alabama.
through estate planning, title searches, and community education, relying on pro bono attorneys to enhance access to justice, especially in housing preservation and foreclosure defense. They actively seek attorneys from rural areas who can address local needs effectively.
- DC: In addition to the Partition of Real Property Act of 2022 (DC’s version of the Uniform Partition of Heirs Property Act), which closes legal loopholes to protect heirs’ property owners from real estate speculators, DC’s Mayor established the DC Heirs’ Property Assistance Program in response to a significant decline in Black homeownership. The Heirs’ Property Legal Assistance Act of 2022 allows the Mayor to issue grants for low-income individuals to secure legal services and clear inherited property titles. Administered by the DC Affordable Law Firm and Legal Counsel for the Elderly, the program received grants from the District Department of Housing and Community Development. Pro bono lawyers support the initiative by drafting estate planning documents and providing legal representation and technical assistance to low-income households facing probate or unclear property titles due to a deceased prior owner.
- Georgia: In addition to issues traditionally associated with heirs’ property, Hurricane Katrina devastated the Gulf Coast in 2005, and its aftermath highlighted the importance of heirs’ property rights in Georgia. Because heirs’ property owners often lacked documentation of their ownership interest before the storm, they could not qualify for FEMA or other government grants to rebuild. The Uniform Partition of Heirs Property Act, effective July 1, 2013, responded to these challenges and provided additional protections. Founded in 2015, the Georgia Heirs’ Property Law Center is a nonprofit law firm aiding heirs’ property owners, nonprofits, and municipalities with title clearing, will creation, and estate planning to bolster equity and preserve wealth transfers. Pro bono attorneys support the Center in various roles, including drafting forms and providing subject matter expertise. Several Pro Bono Institute Law Firm Pro Bono Challenge® signatories, including Eversheds Sutherland, King & Spalding, Troutman Pepper, Alston & Bird, Barnes & Thornburg, DLA Piper, Nelson Mullins, and Paul Hastings, have backed the Center’s efforts with pro bono support, addressing issues like IRS liens and estate planning.
- Louisiana: After Hurricane Katrina in 2005, many Louisiana homeowners were ineligible for federal and state aid due to unclear property titles, despite multi-generational possession. Founded in 2007, the Louisiana Appleseed Center’s Heirs’ Property Project addresses these issues, advocating for legislative changes like the “Heirship Affidavit” to simplify title clearing. Following severe flooding in 2016, Louisiana Appleseed and Southeast Louisiana Legal Services received funding from the Baton Rouge Area Foundation to address heirs’ property and title issues in flood-affected areas. Louisiana Appleseed Center’s Heirs’ Property Opportunity Project, supported by volunteer pro bono attorneys including those from Baker Donelson, a Pro Bono Institute Law Firm Pro Bono Challenge® signatory, aids with title issues through legislative advocacy, community education, and title clearing services.*
- North Carolina: North Carolina has not yet enacted the Uniform Partition of Heirs Property Act, despite its introduction in 2022. Advocacy from various organizations aims to promote land conservation and racial equity, including Conservation Trust for North Carolina, Audubon North Carolina, The Conservation Fund, The Black Family Land Trust, Inc., Environmental Defense Fund, American Forest Foundation African American Land Retention Project, Roanoke Electric Cooperative, NC realtors, members of the NC Bar Association, and academic scholars. The North Carolina Bar Association Real Property Section collaborates with Legal Aid of NC, Pisgah Legal Services, and Land Loss Prevention Project on a pro bono volunteer program. Pro bono volunteers provide a range of services to prevent property loss, including assistance with general real property law, title searches, genealogy and heir research, estate administration and probate, real estate closings and refinancing, partitions, foreclosure defense, and estate planning, safeguarding generational wealth and affordable housing in low-income communities.
- South Carolina: The South Carolina legislature enacted the Clementa C. Pinckney Uniform Partition of Heirs’ Property Act in 2017. Established in 2022, the Heirs’ Property Study Committee studied how the Act has impacted heirs’ property in South Carolina, recognizing the specific challenges to neighborhoods caused by unclear ownership and lack of maintenance resulting in blighted properties, as well as lost economic development opportunities. The Study Committee also provided recommendations for future consideration, including additional funding for the Center for Heirs’ Property Preservation, which protects heirs’ property and promotes its sustainable use to provide increased economic benefit to historically underserved families. The Center focuses on prevention through education seminars and free legal consultations, resolution services like title searches and court filings, and sustainable land use assistance for managing forestland, all aimed at addressing heirs’ property issues. They rely on pro bono lawyers for various events, including their wills clinics.
Takeaways: Pro bono attorneys are facing a crucial opportunity to narrow the racial wealth gap by providing assistance and using their expertise to help individuals and families establish clear titles to their properties. Legal services organizations across the nation, particularly in the South, have facilitated new opportunities for pro bono attorneys to get involved in resolving heirs’ property issues by providing services such as estate planning, will drafting, and title clearing. These pro bono efforts are vital to ensuring property owners can remain in their homes and promoting economic stability and generational wealth building in historically marginalized communities.
*In January 2022, the Louisiana State Law Institute provided the state legislature with an interim report, noting that a committee of the Institute is drafting a Louisiana version of the Uniform Partition of Heirs Property Act, but has expressed concerns about unintended consequences of the law.