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Heirs’ Property: Why it’s a Social Justice Issue and What We Can Do About It

Read on to find out how heirs’ property is a social justice issue, why it’s disproportionately affecting Black families in the U.S., and what we can do about it.

There were one million Black farmers in 1920. Back then, they represented 14 percent of all farmers in the U.S. Today, that number has plummeted down to 45,508, or just 1.3 percent. (White farmers represent 95 percent.) Additionally, Black families only own 0.52 percent of U.S. farmland. According to the last farm census, the average Black-owned farm is just 100 acres, while the national average is 440 acres. 

Data shows that Black farmers are experiencing detrimental land loss and are being shoved out of the agricultural industry. What happened, and what is causing this disparity? 

What is an Heirs’ Property?

Heirs’ property is land that has been passed down from one generation to the next, but in the absence of a Will or other type of estate planning document that can prove ownership.

This creates legal implications for those who inherit heirs’ property. They do not have clear legal title to the land. Oftentimes, the deed to the land is still in the original property owner’s name (a long-deceased ancestor), and proving ownership to clear the title becomes extremely challenging.

Let’s use a real-life example to demonstrate just how difficult it can be to prove ownership of heirs’ property, even when it is rightfully yours.

Grist.org, a non-profit magazine that provides social and environmental commentary, shares the story of Joe Hamilton, a retiree from the Department of Defense (DoD). He inherited land from his formerly-enslaved great-grandfather, along with 7 other of his relatives.

After retiring from the DoD, Hamilton dedicated three years to collecting sufficient evidence to prove that all 8 relatives were direct descendants of his great-grandfather. He visited the county register of deeds office, visited family gravestones, and pored over family genealogy that was written down in the pages of an old Bible. 

He then hired an attorney who, with great effort, cleared the title so that Hamilton and his relatives could legally own 44.4 acres of the remaining land that they had inherited. The land was once an 888-acre plantation. The rest of it had been whittled down over the years through theft and bartering.

Hamilton’s story is not uncommon. News stories and reports tell countless stories that depict a similar picture.

So how is it that Hamilton and his family lost over 95 percent of the land that was rightfully theirs? The answer is systemic racism that leads to social and economic injustices, and it’s still affecting families today.

Let us take a holistic look at heirs’ property in the U.S. before diving in deeper.

Who Owns Heirs Property?

This article will predominantly discuss the impact of heirs’ property on Black families in the U.S., the population that is disproportionately affected. However, it is pertinent to shed light on other communities that are also affected by injustices related to heirs’ property:

  • Hispanic populations in Southwest America

  • Indigenous communities in the West (also referred to as fractional land)

  • Communities living throughout the Appalachia

According to the Center for Agriculture & Food Systems, there is no national data regarding the amount of land held as heirs’ property. The Emergency Land Fund estimated in 1980 that Black families owned 41 percent of land, or 3.8 million acres, as heirs’ property in the Black Belt South. Similar localized data can be found, but nothing that indicates the aggregate of how much heirs’ property was once owned, and how much of it is owned today. Each state reports land ownership data differently, leaving severe gaps in data. A national study would be warranted. 

Systemic Racism: A Historical Context of Heirs’ Property 

Now, you may be wondering why this issue presents itself in the first place. Why didn’t these families establish an estate plan so that they could legally pass down property from generation to generation?

The simple answer is, they couldn’t. Historical context is needed to explain this phenomenon further.

The Thirteenth Amendment abolished slavery in 1865. Roughly 3.9 million formerly enslaved individuals became American citizens and received the legal right to own land. Just prior, the Homestead Act of 1862 granted over 270 million acres of public land to citizens “or future citizens” who planned to live on and improve the land for a nominal fee. With the combination of the Thirteenth Amendment, the Homestead Act, and various other means, Black families owned 14 percent of U.S. farmland by 1920.

As the first generation of Black landowners passed away, their property was left to heirs informally. According to Pew Charitable Trusts, a non-profit, non-governmental organization, Black families did not create Wills or Trusts to establish the legal transfer of property because they were either denied access to the legal system, did not trust it, or could not afford it. Therefore, parcels of land continued to change hands informally, with the original owner’s name still listed on the deed.

Owning land was a symbol of freedom and economic opportunity for those who were previously enslaved and had no rights. Yet, systemic racism continually shuts out and disadvantaged marginalized communities. The conundrum of heirs’ property has contributed to significant, involuntary land loss. Today, Black farmers only own 0.52 percent of the U.S. farmland.

There are several reasons for this:

  • In 1961, the Kennedy Administration put forth a U.S. Department of Agriculture (USDA) loan program to support farmers. Local elected officials and bank officers often discriminated against Black farmers and barred them from these loans that could have helped them get by.

  • In 1997, a civil rights task force proved that the USDA discriminated against Black farmers by denying or delaying loans, reducing loans given, and failing to provide the same technical assistance that was given to white farmers.

  • Any “owner” of heirs’ property can petition a court for a forced sale of the property. Because the property wasn’t passed down to a single individual through legal means, heirs’ property can usually be claimed by a number of family members. Predatory developers can target family members to force a sale using loopholes such as the Torrens Act.

  • Years of involuntary land loss, bartering, and theft significantly reduces the agricultural output, and thus the economic opportunity, of a farm. When your 100-acre farm is competing with a 440-acre farm, who wins? Economic injustices lead to further land loss.

  • Black families abandoned their land and fled to avoid Jim Crow laws and lynching.

  • Racism manifested as illegal takings of land through partition sales, fraudulent tax sales, and forced land sales.

  • Individuals who cannot prove ownership (heirs’ property) are not eligible for federal loans, protection from foreclosure, and relief from disasters. They gradually get forced out of the agricultural industry due to economic hardship.

Decades of marginalization, discrimination, and at times violence, has heavily influenced the involuntary loss of land by Black families, especially farmers. Therefore, their economic potential is grossly eroded and impacts Black farmers to this day.

What is being done Today?

Some progress has been made in assisting the plight of those affected by heirs’ property.

In 2005, the Coastal Community Foundation launched the Center for Heirs’ Property Preservation (CHPP) in South Carolina. The organization supports families in maintaining ownership of their land and to help spur economic development. With the help of CHPP, heirs’ property owners obtain proper deeds and are then able to qualify for loans and funding. CHPP also focuses on sustainable forestry by providing training to landowners on forest management.

The USDA very recently released the Heirs’ Property Relending Program. Through this program, heirs can apply for up to $600,000 to resolve ownership and succession issues on agricultural land. Intermediary lenders had the opportunity to apply between August 30, 2021 and October 30 2021 to provide loans to heirs. The Biden Administration funded the USDA with $67 million for this program.

Prior to September 2021, heir’s property owners (especially Black families in the rural South) were denied in receiving aid from the Federal Emergency Management Agency (FEMA) after natural disasters. They used to require proof of ownership, such as a deed. Since then, FEMA has reversed its policy and will now accept self-certification of homeownership.

Finally, in 2021, the Biden Administration signed the American Rescue Plan, a $1.9 trillion economic stimulus bill, into effect. Of this, $10.4 billion will support agriculture, of which nearly half will go to disadvantaged farmers. Black farmers represent roughly one quarter of this population. The money is intended to provide debt relief, grants, training, education, and other land acquisition assistance.

Executive Director of the Black Belt Justice Center Tracy Lloyd McCurty stated that this is the single most significant piece of legislation regarding Black land ownership in the U.S.

What should we really be doing about this?

Although federal programs have begun to support marginalized farmers just this year, it does not necessarily repair over a century and a half of systemic oppression that has marginalized Black families and heirs’ property owners. (Another century when counting enslavement that began in 1776.) 

In terms of next steps, here are several ideas for possible legislative initiatives:

  • Federal programs to provide education, awareness, access and resources surrounding this issue.

  • According to the Center for Agriculture & Food Systems, there is no national data regarding just how much heirs’ property exists in the U.S. Each state and country compiles and reports real estate data differently. A nationwide study aggregating heirs’ property data can demonstrate just how much involuntary land loss has occurred, and to help inform the level of reparations needed.

  • National adoption of the Uniform Partition of Heirs Property Act (UPHPA) set forth by the Uniform Law Commission. 17 states have adopted it thus far: Alabama, Arkansas, Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, South Carolina, Texas, Virginia.  Adoption of this law restructures the way partition sales occur, which can be devastating for heirs’ property owners. The model provides legal protections.

  • Additional federal assistance to increase the number of attorneys who assist families to clear the titles to their heirs’ properties and establish estate plans. 

  • Close the legal loopholes that currently enable predatory real estate developers to target heirs’ property owners and petition forced sales.

  • Push FEMA’s policy reversal (discussed in prior section) as a permanent change in law.

  • National transfer-on-death laws that make it possible for property owners to designate an individual who will receive a deed upon the death of the property owner. Twenty-five states, plus the District of Columbia, have adopted such measures to prevent a deed from dying along with the property owner.

What Can Owners of Heirs’ Properties do to Protect their Legacies?

Federal grants and programs to aid heirs’ property owners are just beginning to kick in. However, it may take years for heirs’ property owners to benefit from these programs, and play catch-up economically. This is especially true when considering the scale of discrimination and marginalization that occurred for over a century - some property owners may never get some of their land back.

In the meantime, there are some things that heirs’ property owners can do to protect their legacies. ProPublica recommends the following strategies:

  • Pay property taxes: Contact your local tax assessor and ensure that your taxes are paid and that the contact information and address of the individual paying bills is up-to-date.

  • Write out a family tree: Identify the names on the original deed of your land. Then, write out each heir in the family lineage that followed those ancestors. Although this process may take time, you can do so by sorting through legal documents found in the county register, as well as family letters, family reunion records. You can also obtain data from genealogy websites.

  • Establish a paper trail: If you didn’t acquire property through formal estate proceedings, create as much of a paper trail as you can to prove your ownership. 25 states allow for an affidavit of heirship to be filed.

  • Transfer interest on land: Contact other heirs to the property and ask if they would be willing to transfer their share of the property to you, and any other individuals in your family who carry the closest responsibility to the land.

  • Keep a record of your expenses: Keep track of any and all of your expenses related to the property, including taxes, improvements, agricultural overhead, etc. If a partition sale occurs, such a record (including your paper trail mentioned earlier) could help you receive a large share.

  • Establish an estate plan: Create an estate plan to promote the protection and legal transfer of your property, plus the preservation of intergenerational wealth in your family. More on this important practice next.

How can Estate Planning help?

An estimated 50 to 60 percent of Americans die intestate, meaning that they don’t have a Will or estate plan of any sort. This is worrisome, because it means that their estate is subject to probate court proceedings and the state’s intestacy laws on how property should be distributed. This leaves families who have little to no control over their property the most vulnerable and exposed.

Marginalized families did not establish estate plans due to historical oppression and systemic racism, which is why heirs’ property is a problem in the first place. In 1980, as many as 60 percent of Black landowners did not have a Will.

If Black landowners had equal opportunities to establish a Will or family Trust, they would have had the agency to pass down their land from generation to generation in a legal manner. 

Although the owners of heirs’ property should be awarded federal support in the process of clearing titles and transferring deed ownership, planning their estates is a critical next step to avoid any future challenges.

Today, estate planning is an equitable and accessible process. Although many perceive estate planning as something for “rich people,” it’s actually not the case. Estate planning is a process that can help any individual protect their families, establish their legacies, and begin to create and preserve intergenerational wealth. Moreover, estate planning is the key to closing the wealth gap in America. 

Financial technologies like Trust & Will have made it their mission to enable and empower U.S. families to establish their estate plans in a way that is accessible, affordable, and easy. We provide a large library of free education and resources so that families that are new to the estate planning process can move forward with confidence. 

Create an Estate Plan and Establish Your Legacy Today

The term “heirs’ property” is grossly misleading. The possessive apostrophe makes it seem as though the property belongs to the heir. However, from a legal standpoint, heirs’ property does not actually belong to the rightful heir.

Systemic oppression of Black families, and in this context Black farmers and landowners, has been present since the beginning of U.S. history. White families had wide access to business opportunities, federal aid, bank lending programs to build their wealth and hand it down from generation to generation. Black families were quite literally barred from these opportunities, so much so that it still negatively impacts them today. Heirs’ property is the perfect example. 

One million Black farmers has been whittled down to just 1.3 percent today. They collectively only own a fraction of a percent of U.S. farmland. The average size of agricultural property is 440 acres, while Black farmers only own 100 acres on average. Data shows us that involuntary land loss has greatly reduced their economic capacity, thus forcing many out of the industry.

In 2021, the Biden Administration has put forth reparation and economic aid programs to help heirs’ property owners to clear their titles and reclaim their land. However, the effectiveness of these programs remains yet to be seen.

In the meantime, estate planning is the main method through which individuals are empowered to control their own property and protect their intergenerational wealth.

Are you someone who would like to establish their first Trust or Will so that they can build and protect their legacy? Trust & Will provides affordable and accessible solutions for everyone! Learn how you can get started today.