I attended a family reunion recently.

And some of my aunts and uncles were talking about our “heirs’ property”. It appears I have some interest in an old house and tract of land, what should I do?

Heirs property occurs when an estate that contains real property is not probated.[1] Since real property passes as of the date of death, interests are created subject to divestment by provisions of a will or creditor claims. In South Carolina a will and an estate cannot be probated if more than 10 years has passed since someone died. Often a surviving spouse or sibling(s) who were co-tenants just keep paying the taxes and years pass with nothing being done to transfer title to the legal owners. People die and an entire generation may pass away before someone steps up to clean up the mess. I have found this happens due to a lack of understanding concerning the consequences on a chain of title if real property is not probated, a lack of knowledge of intestate law or simply a lack of money to deal with the problem.

Once heirs property is created it can be expensive to resolve. The legal matter is referred to as an action to quiet title[2] and usually the person bringing the action will also seek contribution and reimbursement for maintaining the property, paying taxes and insurance and contribution to their attorney fees and costs. Sometimes all the owners can’t be found and service by publication is necessary. Ultimately the Circuit Court has to determine who the legal heirs are and this is where probate records, deeds, family genealogists, death certificates, marriage, birth and divorce records come into play. Division in-kind into physically distinct and separate titled parcels is not always possible and therefore an auction by sealed bid or public sale may be ordered.

Some years back heirs property was a significant legal concern in South Carolina as many black families were losing their land inheritance along the coasts and recreational areas of the state.

Families that are able to work together for a common good are often able to provide affordable housing for a senior or disabled family member. Others have created family businesses to cultivate and harvest timber so each generation has a source of income. Others have improved their communities by honoring a forefather with a charitable foundation and lasting family gathering place. Depending on the location your family might protect hunting rights or help conserve nature, wetlands or our forests.

I recommend you speak with an attorney that handles this kind of matter to determine your goals, the value of your interest and your options.

[1] The same kind of thing happens with personal property but it is generally referred to as undivided fractional interests. An unusual case arose in the Estate of James A. Elkins, Jr. deceased et al. v. Commissioner, 140 T.C. No. 5 (March 11, 2013). The beneficiaries owned interests in 64 valuable works of art, including a Henry Moore sculpture, Picasso drawing and Jack Pollack painting. Eventually an art expert determined that the paints were devaluated between 80-95% because no one would want to buy a fractional share, even a museum.

[2] S.C. Code Ann. §15-61-25 provides a right of first refusal and process for co-tenants with at least a 20% interest to buy out family property.


Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.

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