As an Atlanta probate attorney, I have a lot of experience with navigating issues which arise from a type of property called “heirs property.” Heirs property is “home or land that has been passed from generation to generation in such a way that multiple people own the same piece of property” (Georgia Heirs Property Law Center). This can happen either because a deceased person left the property to multiple people in their will, or because the deceased person died intestate, causing the property to be passed automatically to their heirs-at-law. The multiple owners of heirs property are “tenants in common,” which means they all have a share of rights to the use, possession, interest, rent, etc. of the property (Georgia Bar Journal). Heirs property is an issue which presents a plethora of challenges for the owners of such a property.
One common and significant problem inherent with heirs property is “clouded title,” meaning that because of the undocumented nature of the succession of heirs property, it is often not clear on the property’s title who exactly owns the property and what rights they have with the property (Georgia Bar Journal). Therefore, it is typically necessary for all co-tenants of a piece of heirs property to agree on decisions regarding the use of the property. Since it is often difficult or impossible to get co-tenants to agree, it can be problematic to capitalize effectively on the economic potential of the property, such as collection of rent (Georgia Bar Journal). If the heirs can’t agree on decisions about the property, it can even increase the possibility of a forced sale or eviction (Georgia Heirs Property Law Center).
Another significant issue which can arise with heirs property is the co-tenants’ right of partition with the property (Georgia Bar Journal). This right of partition can either be a “partition-in-kind” or “partition-by-sale,” and any of the owners of a piece of heirs property can submit a petition to the court for a partition. A partition-in-kind is a partition in which a parcel of property is physically divided into smaller parcels, with each co-tenant getting their own parcel (Georgia Bar Journal). This can result in dissatisfied heirs, especially if the heirs property was small to begin with, which can result in individual heirs owning a parcel of property too small to be put to good economic use.
A more common method of partitioning real property is a partition-by-sale. If granted by the court, a partition-by-sale allows for the property to be sold. Any profits from the sale of the property are then divided among the heirs. However, the profits are not divided equally among the heirs; they are divided pursuant to the proportion of ownership interest each individual heir has in the property. Ownership interests can vary drastically among the co-tenants, which can result in dissatisfied heirs, as well. A partition-by-sale also can result in a sense of lost familial history (Georgia Heirs Property Law Center), as investors and other non-family members can purchase one heir’s interest in the property and then petition the court for a partition-by-sale (Georgia Bar Journal). According to the Georgia Bar Journal, this often results in the property being sold for less than its fair market value.
As a Georgia probate attorney, I have years of experience with assisting my clients in matters regarding heirs property. If you have questions about heirs property, or if you are having an issue regarding a piece of heirs property, please email me or call my Atlanta probate firm at (404) 445-7771.
