Heirs Property

A common challenge in West Virginia is property that has passed down automatically from one generation to the next without a will (or through wills that give the property to “all of the children equally”), giving multiple—sometimes hundreds—of heirs ownership interests. 1 “Heirs property,” “heirs’ property,” and “land in heirs” are all colloquial terms that describe a form of ownership where at least some owners have acquired a property through inheritance. 2

[Economic development is] frequently impeded, unduly delayed, or wholly frustrated by imperfections in the title to essential land and other real properties, by lost heirs or widely scattered owners of undivided interests in essential lands and other real properties and by owners of relatively small but essential parcels of a proposed land development site who refuse to sell their land or other real property[.]

- West Virginia Code § 7-12-7a

Heirs’ property can raise several problems, most of which result from land being held by numerous owners or the failure of co-owners to agree on land use:

  1. Significant difficulties arise in identifying and locating heirs in order to give notice.
  2. The title to heirs’ property is often unclear, which makes it more difficult to demolish, rehabilitate, and repurpose abandoned and dilapidated structures, and to transfer properties for development or repurposing.
  3. Owners can be forced to give up ownership by a partition action, even if they do not wish to do so. 3 This may be of particular concern where a family has owned land for generations—any owner can file a partition action.
  4. In reality, each owner has a reduced right to use the land because all of the owners share the right to full use of the land. For example, constructing a residential house on a property would infringe upon co-owners’ rights.
  5. The land’s resources, such as timber or minerals, may remain undeveloped. 4
  6. Rarely is heirs’ property used as collateral. 5 Land maintenance and development is further hindered when co-owners cannot agree on borrowing money against a property.

Recommendations to owners of heirs’ property include:
  1. Create a family tree.
  2. Make a plan for the land, including decisions about who pays bills and who lives on the land.
  3. Confirm who has rights to the property and begin to transfer the property through more formal processes, especially by drafting a will. 6

1 Heirs’ property proves particularly prevalent in poor African American and Native American communities, as well as in low-income areas of Appalachia. B. James Deaton et al,, Examining the Consequences of Heirs Property, 68 Ecological Econ. 2344, (2009) (citing B. James Deaton, Land in Heir’s: Building a Hypothesis Concerning Tenancy in Common and the Persistence of Poverty in Central Appalachia, 11 (1-2) J. Appalachian Stud. 83 (2005); B. James Deaton, Intestate Succession and Heirs Property: Implications for Future Research for the Persistence of Poverty in Central Appalachia, 41 J. Econ. Issues 927 (2007)).
2 B. James Deaton, A Review and Assessment of the Heirs’ Property Issue in the United States, 46 J. Econ. Issues 615, 615–16 (2012).
3 Id. at 617; Deaton et al., supra note 1, at 2348.
4 Deaton et al., supra note 1, at 2346.
5 Id.
6 What You Need to Know About Heir Property, USDA, available at www.fsa.usda.gov/Internet/FSA_File/whatyouneedtoknowheirproperty.pdf.