Heirs’ Property State Survey
Comprehensive research was conducted into the statutory options available to resolve heirs’ property title issues in each U.S. state and territory. Though the language and structure of each set of statutes is unique, the approaches available have been broadly categorized into five columns: partition, judicial proceedings for estate administration, informal probate, affidavit of heirship, and Marketable Record Title Acts (MRTAs). Many jurisdictions offer more than one of these as illustrated in the chart below. Brief descriptions of each category follow. An in-depth research report with more detailed findings can be found here.
Every state offers some form of partition action. The two forms are traditional partition action and reformed partition action under the Uniform Partition of Heirs’ Property Act (UPHPA). Partition results in clear title, but also the land being parceled out, sold, or a combination.
Statutes are on the books in many states that authorize owners of heirs’ properties to petition the relevant court for formal estate administration. States in this category statutorily permit heirs’ property owners to petition the court for a judicially mandated and overseen estate administration process. Judicial proceedings result in clear title. However, being a formal proceeding, this process may be time-consuming and costly. As part of the process, some of these states formally require an affidavit of heirship. Some may argue that a judicial proceeding offers advantages over an affidavit only process because the judicial stamp of approval provides a high level of certainty.
Informal probate is codified in the Uniform Probate Code (UPC). Therefore, states that have adopted the UPC in full also have informal probate procedures. Informal probate results in clear, marketable title. Under informal probate, any heir may petition the Registrar to appoint an administrator: within three years of a decedent’s death; or anytime if the prior proceedings were dismissed because of doubt of the decedent’s death; or, if no court proceeding occurred within a prior three-year period. The petition must include a list of heirs. The administrator may be the petitioner or another heir. The holding in an informal probate proceeding is final and only susceptible to a contrary order from a formal testacy proceeding.
A few states permit heirs to file affidavits of heirship directly with the Registrar, clerk and recorder, or equivalent. This alternative proves the most heir friendly, bypassing the judicial system by allowing an heir to submit an affidavit of heirship directly to the clerk and recorder. This process involves less time, money, and legal resources than other ways of clearing title. The affidavit of heirship option not only results in clear, recorded title, but also, in some cases, transferal to the tax assessor for property tax purposes.
Additionally, some states have adopted Marketable Record Title Acts (MRTAs), which mandate that a party interested in clearing title to a property must only search the records for a statutorily defined time period. The statutory time periods vary from 20-year to 50-year windows with the average being 30-years. These acts could either benefit or disadvantage an owner of heirs’ property, depending which side of the claim they are on. Heirs in possession could obtain legitimate marketable title; heirs not in possession have the opportunity to formally record their claim to the property but only if they are aware of the proceedings. A non-heir in possession of the land could also use a MRTA to obtain title.
This information is intended to be an aid to research state heirs’ property laws. For example, this publication does not include case annotations, which a researcher must consult to thoroughly understand any particular statute. As such, this chart is intended for use solely as an educational tool and research aid, and not as a substitute for individual legal advice. This compilation was published in July, 2024.