Heirs Property in Georgia: Common Issues, Current State of the Law, and Further Solutions

• Publication year: 2021

Heirs Property in Georgia: Common Issues, Current State of the Law, and Further Solutions

Caitlin Henderson
University of Georgia School of Law

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HEIRS PROPERTY IN GEORGIA: COMMON ISSUES, CURRENT STATE OF THE LAW, AND FURTHER SOLUTIONS

Caitlin Henderson^*

In Georgia, real property passes through an intestate estate in the form of heirs property. Under this system, heirs share ownership of the property as tenants in common. This form of ownership poses several obstacles to realizing the land's full potential and, in certain circumstances, courts will partition the property in forced sales or will physically divide the property among the heirs. Heirs property and its accompanying problems are particularly common in Georgia due to strict policies concerning will execution formalities. Georgia and the U.S. Congress have attempted to cure the problems associated with heirs property through the adoption of the Uniform Partition of Heirs Property Act and the Farm Bill of 2018. However, these remedies, while an admirable step toward addressing heirs property issues, fail to correct all of the problems associated with heirs property. This Note proposes several mitigating solutions for these problems and also suggests that Georgia facilitate the execution of wills to prevent heirs property from arising in the first place.

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Table of Contents

I. Introduction....................................................................877

II. Prevalence of Heirs Property in Georgia................878

A. General Prevalence.............................................878
B. Racial Disparity....................................................880
C. Class Disparity......................................................882

III. Problems with Heirs Property..................................883

A. Inability to Realize The Land's Full Potential 884
B. Injustices with Forced Sales..............................887

IV. Past Efforts to Remedy...............................................891

A. Prior Legislation..................................................891
B. Uniform Partition of Heirs Property Act..........892
C. Farm Bill of 2018...................................................897
D. Other Proposals...................................................897

1. Legal Arrangements.........................................898
2. Equitable Remedies..........................................900
3. Procedural Remedies for Partitions.................902

V. Fixing the Problem........................................................905

A. Lingering Problems with Prior Reforms...........905
B. Potential Further Solutions.............................906

VI. Conclusion....................................................................909

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I. Introduction

John Smith, a forty-six-year-old man, owned a house with ten acres of land in Union County, Georgia. He had a wife and three children but died unexpectedly without executing a will. As a result, his estate passes through intestacy, under which his wife, Pam, gets an interest in one-third of his estate and each of his three children get two-ninths of his estate.¹ John's property thus becomes heirs property where one heir can disrupt the other tenants' plans for the property.² If a family disagreement erupts, one of John's children or his wife can sue for a sale of the property, forcing the rest of the family off of it—even if the family has been living in the home for the last fifty years.³ This becomes more complex if a cotenant also dies intestate, in which case their share gets further subdivided among their heirs.⁴ This hypothetical scenario offers one example of a common issue associated with heirs property—one heir can dictate or prevent the use of the property at the other tenants' expense—and illustrates the need for remedial measures.

When a person dies intestate or when an estate bypasses the probate system, if multiple heirs inherit the decedent's real property, the default system in Georgia is to create a tenancy in common among the decedent's heirs where each heir holds an undivided fractional interest in the property.⁵ This system gives rise

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to heirs property (also known as heir property or heirs' property), which is property held in a tenancy in common by multiple heirs.⁶ As tenants in common, each heir has a right to use and possess all of the property, and no heir can be excluded by the other tenants.⁷ But difficulties arise under this form of ownership because no single tenant can make important decisions for the property without unanimous agreement.⁸ Although some advances have been made to mitigate these problems,⁹ more remedial action is necessary.

This Note examines the impact that the heirs property form of ownership has had on Georgia and offers potential remedies to common heirs property issues. Part II discusses the prevalence of heirs property in Georgia. Part III addresses the problems associated with heirs property, including the barriers to the property's best use and the injustices associated with partition suits. Part IV analyzes past efforts to solve these problems as well as proposals for future solutions. Finally, Part V recommends further remedies to heirs property in Georgia, particularly with respect to reforming will execution requirements.

II. Prevalence of Heirs Property in Georgia

A. General Prevalence

Traditionally in Georgia, southern farmers and rural landowners verbally bequeathed their land—a practice that, although much less

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common, continues today.¹⁰ Georgia law, however, does not recognize verbal bequeaths as valid means of transfer in many instances, so the verbally bequeathed land is often converted into heirs property.¹¹ This tradition, along with the widespread use of land passing through intestacy in Georgia, has resulted in a large amount of heirs property.¹² The Georgia Appleseed Center for Law & Justice released a study attempting to gauge the prevalence of heirs property in Georgia.¹³ The study first identified over 4000 land parcels as potential heirs property land within twenty Georgia counties.¹⁴ The study discovered that nearly sixty million dollars in property was owned as heirs property in five counties alone.¹⁵ The results of this study suggest that hundreds of millions of dollars of heirs property may exist in Georgia; therefore, preventative and corrective solutions are needed to address potential heirs property issues.¹⁶ Another study of just ten counties in Georgia "identified 38,120 acres as probable heirs property representing a total tax

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appraised value of over $2 billion."¹⁷ This study further estimated that "the total tax appraised value of probable heirs property undermining Georgia's economy is over $34 billion."¹⁸ This amount of unrealized property is concerning—especially since racial minorities and lower income persons are often the owners of heirs property and experience many disadvantages from this form of ownership.

B. Racial Disparity

Racial minorities are disproportionately affected by heirs property issues and often face the heaviest burdens from heirs property.¹⁹ Before the Civil War, African Americans in Georgia were unable to own or convey land in a will or intestacy since they were often considered property themselves.²⁰ After the Civil War, "many former slaves and their descendants in the rural south became land owners," but they "often did not have wills."²¹ After this brief period of land acquisition among former slaves, African American land ownership sharply declined in 1920 due to abandonment of their lands following boll weevil infestations and other natural disasters, African American migration out of the South, and forced sales.²² In

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addition, oral tradition among African Americans and the lack of literacy education led to a strong reliance among freed slaves on states' intestacy statutes to control the distribution of their estates.²³ The tendency of minorities to not execute wills continues today.²⁴ One study found that whites were more than twice as likely than non-whites to have executed a will.²⁵ Such a tendency to abstain from creating written wills is especially problematic in Georgia because dying without a will often converts the property into heirs property upon death.²⁶

The status of land as heirs property involves the danger that a court can order a forced sale of the property even over a tenant's objections.²⁷ Such partition sales of heirs property have stripped many minorities of their land, often breaking strong cultural ties as well.²⁸ Heirs property partition sales are still uprooting distinct subcultures in Georgia and contributing to the extinction of some subcultures.²⁹ Scholars have attributed the decline of African American ownership of agricultural land to partition sales.³⁰

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Partitions of heirs property not only disproportionately affect African Americans, but also Mexican Americans, Native Americans, and other racial minorities associated with lower incomes and higher rates of intestacy or tenancies in common.³¹ The presence of heirs property within racial minority groups "has been hypothesized to be correlated with, and a cause of, the persistence of [multi-generational] poverty."³²

C. Class Disparity

Heirs property issues affect Georgians of all backgrounds and communities,³³ but descendants with lower incomes are disproportionately more likely to die without a will.³⁴ Georgia is a strict compliance state with respect to the execution of wills, meaning that it requires strict adherence to statutory will formalities.³⁵ Additionally, Georgia refuses to recognize holographic wills,³⁶ making it more difficult for a lay person to execute a valid will without the help of a lawyer.³⁷ Since lawyers often charge costly

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fees to draft wills and can be intimidating to deal with, lower income individuals are often unable to hire a lawyer to draft a will and therefore often die...