The Florida legislature has passed the Uniform Partition of Heirs Property Act. Click here for the Enrolled version of CS/CS/SB 580. It is expected that the governor will sign. The Agriculture Improvement Act of 2018 passed by Congress ties funding to the passage of the Uniform Partition of Heirs Property Action. Text of the Agriculture Improvement Act of 2018.
Florida Bar Journal Article
University of Florida professor Joan M. Flock and two recent UF Law graduates studied Alachua County statistics and made the argument that special partition procedures were needed for heirs who inherited property, but never properly probated the estate of the original owner. Here’s a link to their article in the Florida Bar Journal. The Disproportionate Impact of Heirs Property in Florida’s Low Income Communities of Color In poor communities, this can mean generations of heirs who never hired a lawyer to clear title need to prove ownership for programs like the Manatee County SHIP program and for homeowner’s insurance. The same problem arises when the family wishes to sell because they can no longer afford to maintain the property.
RPPTL Section Response
As Co-Editor of the RPPTL Section column in the Bar Journal, I helped with a response to explain why current partition proceedings could be utilized to address the problem. The Uniform Partition of Heirs Property Act – A Solution in Search of a Problem In addition to Chapter 64 partition action procedures, which already exist, there is a section in the Probate Code that authorizes the partition of non-homestead property by the court. Section 733.814, Florida Statutes, When property qualifies as the deceased owner’s homestead and it passes to family members, the Probate Code should not apply and family members would have to utilize the normal partition procedures. The new partition procedures still don’t avoid the need to probate or otherwise establish the passage of ownership from the original owner to the heirs. A partition lawsuit, including ones under the new Act, could include a count for a declaratory judgment that establishes ownership in the heirs.
No Place Like Home.
The Real Property, Probate and Trust Law Section Section has addressed the problem with the “No Place Like Home” program that coordinates pro bono attorneys to help these families. I handled an estate where the daughter of a deceased veteran could not recover insurance proceeds after a hurricane damaged the home. More information on the program can be found here: RPPTL Section No Place Like Home Program.
Application of the New Act
The new law would also apply to cases where heirs inherited under a Lady Bird deed. This is often a problem because Lady Bird deeds are viewed as an estate planning tool for the poor, but they often result in situations where multiple owners can’t or don’t maintain the property and won’t hire a lawyer to address the problem. The law would apply to cases where the original owner had a will and cases where the owner did not.
South Carolina History
Advocates of the new law often cite South Carolina as a place where the heir’s property problem is common. On a personal note, I am a descendant of George Goethe, who came to South Carolina in the 1760’s. He received 800 acres from England and established a lumber mill. Records indicate that he fought in the American Revolution, was captured, and was held on a British prison ship off the coast of South Carolina. To the best of my knowledge, none of George Goethe’s ancestors own any portion of the 800 acres he owned. (I have not traced the title back to the 1760’s.)
South Carolina Non-Profit Organization
The Center for Heirs’ Property Preservation is a non-profit organization in South Carolina that advocates proper planning as an important way to prevent the heirs’ property situation. They conduct educational outreach programs to stress the importance of having a will and utilizing probate proceedings when a landowner dies. A major source of the problem is that families often wait until several generations of owners die before seeking legal assistance. By then, the number of heirs involved has increased exponentially and many of the heirs holding an interest in a piece of land may be minors, incapacitated, or deceased. Here’s a link to their web site: https://www.heirsproperty.org/
The Need for Estate Planning
Overall, the new law highlights a problem that is not unique to low income families. A study reported at Caring.com is summarized with a startling graphic.
Just about anyone who owns property, or will own property, should have a will. For something so important, and so easy to get wrong, it really is important to seek the assistance of a professional.