Estate Planning and Heir Property
Why do you need a will?
Estate and transition planning is an important part of maintaining land ownership. One way to start this process is by drafting a will. Your will provides direction to your heirs about what to do with your property after you die. If you do not have a will, North Carolina has a process, called intestate succession, which determines how your property will be distributed. Historically, many families did not write wills, and their land is now owned as “heir property”. This form of fractionated land ownership can be unstable and owners must be willing to work together to maintain the land, pay taxes, and make joint decisions about conveyances of the property.
Your Deed and Tax Records
You should have a copy of your deed!
Each county has a Register of Deeds Office that maintains all the property records related to land.
Payment of Property Taxes
Land owners should make sure that property taxes are kept up to date. The county has the ability to foreclosure on your property if the taxes are not paid.
Special Note: If the landowner is over 65 or permanently disabled, he or she can request an exemption on a portion of the property taxes due on the land where his or her primary residence is located. This form should be turned into the tax office of the county where the primary residence is located prior to June 1st. Link to Form: http://www.dornc.com/downloads/fillin/av9_2013.pdf
Heir Property and Partitions:
Why you should utilize estate planning to secure your land resources.During the 50 years following the Emancipation of slaves, and against all odds, African Americans in the South acquired an estimated 15 million acres of land. Today, African American owner-operators of farms own only about two million acres of land. The broad consensus is that the loss of much of this land has been involuntary. What is going on?
A nightmarish legal loophole
Like many poor people, rural African American farmers often failed to prepare wills before they died. In the absence of a proper will, state laws governed how the farmers' land was passed on to their heirs upon their death. What this usually meant was that interests in the land were passed on to a large number of people who were classified as "heirs" in the eyes of the courts, and when those heirs died themselves, their ownership interest in the land was passed on to
theirheirs. The result of this process is that in a relatively short period of time, ownership of small pieces of property have been split amongst hundreds (and sometimes even thousands) of people.
As it stands now, any co-owner can seek the division or sale of a piece of property without regard to how much on an interest they own. What this means is that an individual who has a marginal ownership interest in a small portion of a piece of land, and who does not pay any taxes or contribute to maintaining the land in any way, can force the co-owners who are actually using the land to sell their portion as well.
Additional resources on heir property:
- The Center for Heirs Property Preservation http://www.heirsproperty.org/
- Estate and Transition Planning
- NC Farm Transition Network www.ncftn.org
- FarmLASTS http://www.uvm.edu/farmlasts
- For a more in-depth, scholarly treatment and analysis of this issue, interested individuals should read University of Wisconsin Law School Prof. Thomas Mitchell's article From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies In Common