Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
By: Claire Cockrell
I. Introduction
Land is wealth. While there are protections in place to help prevent land loss due to a forced partition sale, the best way to prevent land loss is by establishing a will. When someone who possesses land dies without a will, the title to their land becomes ‘cloudy’ and that land may be considered heirs’ property. Often, this means that multiple people spanning generations of a family own an interest in the land. In the past, this meant that one relative could force the partition of the land in order to sell their share. In addition, investors could pay delinquent taxes and obtain a deed to a property often without the knowledge of the owners.
Today, laws have been reformed and the Uniform Partition of Heirs’ Property Act (UPHPA) has been enacted in Arkansas and 22 other states. The UPHPA is helpful to those who have heirs’ property by creating a fairer partition process, however, the process is still complex. Therefore, an emphasis should be placed on both access to legal services that provide will drafting and protecting the UPHPA from repeal efforts.
II. Characteristics of Heirs’ Property
When most people think about family-owned land, especially in Arkansas or other Southern states, a picture of rural pastures comes to mind. While much of heirs’ property is rural, heirs’ property can be urban or rural, each with their own unique challenges and considerations. For example, a study of heirs’ property in Jacksonville-Duval County, Florida found that heirs’ properties overlapped significantly with redlining.
It is important to note that heirs’ property disproportionately affects Black landowners. It is estimated that heirs’ property comprises “more than a third of Southern black-owned land – 3.5 million acres, worth more than $28 billion.” Further, over the course of the 20th century, roughly 13 million acres of farmland were lost. Today, the value of this lost land accounts for “3.3 percent of the estimated racial wealth gap of $10 trillion.”
This disparity is due to a multitude of factors caused by systemic racism. One facet of this is the hesitancy of Black landowners to seek out estate planning legal services. One study found that 34 percent of White respondents had wills, in contrast with 16.4 percent of non-white respondents. In addition to this, a general lack of access to legal services and specifically a lack of access to legal services in rural areas makes estate planning even more challenging to pursue.
In addition to concerns about lost wealth due to land loss, there are restrictions upon heirs’ property as landowners do not have a clear title and therefore have limitations regarding use of the land. Those who hold a clear title to land can improve upon the land and potentially make an income from it. The Business Innovations Clinic at Bowen, in partnership with the Arkansas Appleseed Legal Justice Center, has created an Heirs’ Property Toolkit which contains more information about these options.
III. Importance of Obtaining a Will
A will or estate plan provides legal direction for property after someone dies. Without it, property passed through inheritance can become heirs’ property. When multiple people within a family over several generations have a right to the same land, it can be complicated. When many people own an unclear interest in the same piece of property, getting everyone on board with decisions about the property may be difficult or impossible. Further, one person can decide that they wish to sell their share. With or without the UPHPA, this can result in an elaborate process that jeopardizes the shares of other cotenants. Therefore, obtaining a will or estate plan is the preferred way to prevent the legal issues that surround heirs’ property.
IV. How the UPHPA Helps Balance the Rights of Landowners
The UPHPA is designed to provide protection against the forced sale of heirs’ property by balancing the rights of cotenants in a partition action. Some of these rights are “notice, appraisal, and right of first refusal.” The Act includes a multi-step process, which can have five or six steps depending on the circumstances of the partition. These steps include: (1) determining whether the property is heirs’ property; (2) the cotenant who wishes to partition the property has to let other cotenants know that they have started the process; (3) the market value of the property must be assessed; (4) allowing cotenants who did not start the legal action to buyout the cotenant (or cotenants) who are trying to force the partition; (5) partition in kind or (6) partition in sale.
While this process is still complex, it places a heavier emphasis on the generational value of the land when considering partition. The enactment has additional benefits to landowners, as “in 2018, the U.S. Congress passed a law giving preference for certain federal farm loans to applicants from states that enact the UPHPA.”
V. Recommendations
Continuing efforts must be made to educate the public on the importance of drafting a will, utilizing the UPHPA, and clearing one’s title. While the UPHPA is integral to aiding in the preservation of generational wealth, its usage can be time consuming and costly. Establishing a will and other estate planning procedures can greatly protect assets and help maintain generational wealth.
Organizations like the Center for Arkansas Legal Services provide simple estate planning services in addition to help with heirs’ property concerns. Those who provide services, or wish to provide services relating to heirs’ property, should continue to expand and provide these services to minority and rural communities.
The Arkansas Appleseed Legal Justice Center, with whom I have spent the past summer researching the policy surrounding heirs’ property and the UPHPA, is working towards protecting the UPHPA and providing public education surrounding heirs’ property. Appleseed centers in Georgia and Louisiana have also taken on important work in this field.
Activists, grassroots organizations, and nonprofits have consistently been key players in the passage of the UPHPA. These entities should continue the push for the greater adoption of the UPHPA, protection of the UPHPA where it has been enacted, and education of the public about the importance of planning ahead, clearing their title, and utilizing the UPHPA.
About the Author: Claire Cockrell is a second-year concurrent Juris Doctor and Master of Public Service candidate at the William H. Bowen School of Law and Clinton School of Public Service. Cockrell is a member of the Arkansas Journal of Social Change and Public Service, member of the traveling Bowen Trial Advocacy Team, part-time Honor Investigator for the Student Bar Association, and marshal for the Robinson Chapter of Phi Alpha Delta.