preserving your property: a guide to heirs’ property in ... · pdf fileerty becomes...

Preserving your Property: A Guide to Heirs Property
in North Carolina
Developed by the Heirs Property Retention Coalition (HPRC)
Last revised: July 2009

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TABLE OF CONTENTS Introduction 3
What is Heirs Property? 4
Intestacy 7
Rights 8
Responsibilities 9
Characteristics of Heirs Property Recap 10
Problems with Heirs Property Ownership 11
Risks of Owning Heirs Property 12
Property Taxes 12
Partitions In Kind 16
Partition Sales 17
Preventing Land Loss 20
Clearing Title 20
Protecting Your Land 23
Limited Liability Company 23
Land Trusts 25
Tenancy-in-Common Agreements 26
Heirs Property: True or False? 28
Glossary 30
Sources 32
For More Information 33

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INTRODUCTION
At the beginning of the 20th century, African
Americans owned over 15 million acres of rural land.
Since that time, however, they have been losing their
land rapidly and today African Americans own only
about 2 million acres of farmland. One of the causes
of this land loss is a form of land ownership called
heirs property*.
This guide provides information about heirs
property in North Carolina and dispels numerous
myths associated with this risky form of land owner-
ship. The guide also includes ways to prevent losing
your land, actions to take if you are in the process of
losing your land, and organizations to contact for
more information.
*Definitions of bolded terms can be found in the glossary on p. 30

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WHAT IS HEIRS PROPERTY?
Heirs property is a term used to describe land
that is owned by two or more people, where most of
those people inherited, rather than purchased, their
shares of the property. Each owners share of the
land is undivided. Undivided means that al-
though an owner might own 1/3 of the property, that
owner cannot point to a specific piece of the property
that he or she owns.
When a landowner dies without a
will (called dying intestate) or with
a will that isnt written correctly, the
law says that the land is automati-
cally divided among the surviving
family members. Those family mem-
bers who inherit land from the de-
ceased landowner are called heirs.
If the heirs, who now own a portion of the land,
also do not have a will when they die, their interests
in the land will be divided among their descendants.
With each passing generation, the land continues to
be divided among surviving heirs.

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WHAT IS HEIRS PROPERTY? (contd)
To show how the number of owners of a piece of
land may grow, consider the following example. (For
simplicity, assume that all spouses die before the land-
owners die.)
Suppose that Leo bought a piece of land in 1910.
He had three children: John, Frank, and Lucille.
When Leo died, the land was split between the three
children. Each child received 1/3 of Leos land.
Now suppose that John, Frank, and Lucille each have
two children. The family tree would now look like this:
Leo
John
(1/3)
Frank
(1/3)
Lucille
(1/3)
Leo
John
(1/3)
Frank
(1/3)
Lucille
(1/3)
J1
(1/6)
J2
(1/6)
F1
(1/6)
F2
(1/6)
L1
(1/6)
L2
(1/6)

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If John, Frank, and Lucille do not make wills (or
make wills that do not work properly) then when they
die, their shares of the land will be automatically di-
vided among their children. Johns 1/3 will be split be-
tween his two children so that each child inherits 1/6.
The same happens with both Frank and Lucilles chil-
dren.
As each generation goes by and the ownership
shares are divided and passed on to new family mem-
bers, more and more people become owners of the
same piece of land. Imagine if instead of having two
children in the example above, Leos children had
four, five, or six children who then each had four, five,
or six children of their own. You can see how the num-
Leo
John
(1/3)
Frank
(1/3)
Lucille
(1/3)
J1
(1/6)
J2
(1/6)
F1
(1/6)
F2
(1/6)
L1
(1/6)
L2
(1/6)
J1a
(1/12)
J1b
(1/12)
J2a
(1/12)
J2b
(1/12)
F1a
(1/12)
F1b
(1 /12)
F2a
(1/12)
F2b
(1/12)
L1a
(1/12)
L1b
(1/12)
L2a
(1/12)
L2b
(1/12)

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ber of owners can become quite large. In fact, it is not
uncommon for there to be hundreds or even thou-
sands of owners of a single piece of land.
As the land gets passed down from one genera-
tion to the next, not only are there more and more
owners, but the size of the owners shares in the
property gets smaller and smaller as they are divided
among more and more people. Consequently, there
are more and more owners with smaller and smaller
interests who must try to agree on how the land
should be used.
Intestacy
To get a basic understanding of who the heirs are
in your family, it will be helpful to draw a family tree,
starting with the original landowner of the property.
However, North Carolinas laws of intestacy (the
rules governing the distribution of property when
someone dies without a will) can get complicated,
because they take into account factors such as
whether the spouse is still alive at the time the land-
owner dies, as well as the number of children that
the landowner left behind. To get an accurate pic-
ture of exactly who owns shares in your familys
property, it would be best to get legal assistance to

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help you sort out the rules.
Rights
All heirs property owners have a right to use and
enjoy the entire land. This means that any owner can
enjoy the entire property as if she were the only land-
owner. She can use and occupy any part of the land at
any time as long as she does not prevent other owners
from entering and using the property. If the owner oc-
cupies the entire property, she does not need to pay
rent to the other owners. All owners have this right no
matter the size of their share of the land.
In addition, all owners may sell or transfer their
own interest in the land without consulting the other
owners. When an owner sells his or her interest in the
land to a person outside of the family, the entire prop-
erty becomes vulnerable to a partition sale (see p.
17 for more information).
At the same time, however, a person cannot deed
land that she does not have. So if an heirs property
owner writes a deed that says I sell Blackacre to
Joe, Joe does not own all of Blackacre. Instead Joe
owns just that fraction of an interest that the heirs
property owner had before selling it to Joe. This can

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have an impact if later owners try to clear title to
their land (see p. 20 for more information).
Responsibilities
Heirs property owners have the same responsi-
bilities to take care of their land as any other land-
owner. This means that heirs property owners must
pay property taxes, keep squatters or other unwanted
intruders from living on the land, and cover basic re-
pair and upkeep.
However, the law does not divide up the responsi-
bilities for managing the land. As a result, sometimes
this task may fall on one or two owners because the
other owners are unwilling, unable, or unaware of
their responsibilities.
Heirs property owners must also divide among all
owners any profits gained from using the land. So, for
example, if timber is cut from the land, any profits
must be split among all the owners.
Dividing the profits must be made according to the
percentage interest that each owner has in the land. If
an owner has 1/10 of an interest and a timber sale re-
sults in a $100 profit, that owner is entitled to $10.

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Even if one or two owners take greater responsibility
for managing the land, the law does not allow those
owners to receive a greater percentage of the profits.
Characteristics of Heirs Property Recap:
Owners do not own a specific part of the land but
rather own an undivided fraction of the entire
property;
Owners have the right to use and occupy the entire
property regardless of the size of their interest;
Owners can do whatever they want with their own
individual interests in the property without con-
sulting the other owners;
Owners cannot give away the property interests of
other owners;
Owners must pay property taxes, keep unwanted
people off the land, and cover basic repair and up-
keep;

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