Success in an heirs property case may come in different forms. Clearing a title may not be the best option for everyone. The heirs may decide not to clear title to a property for financial or cultural reasons. Sometimes there are too many heirs to realistically all agree to resolve the title. They may not be able to afford the high costs to clear the title. Owners may share a strong connection to the land and prefer to keep land in the family for any future family members to return to and enjoy. The choice to clear or clarify title to heirs property is ultimately the right of all the owners.

If owners want to maintain their property as heirs property, there are a few ways to clarify the title. To clarify title means to clearly establish the owners and make it known what fractional undivided interests they own. Although clarifying a title does not resolve all heirs property issues, it can help prevent future disputes and make future title clearance easier.

Probating a will is another way to clarify or clear title. There are multiple other ways to clarify title. Before clearing or clarifying title, a family tree should be completed, a title examination should be performed, and the fractional ownership interests of each heir should be calculated.

Affidavit of Heirship

A legal document that names and establishes the rightful heirs of property. An affidavit of heirship typically includes personal information about the decedent (deceased) and the heirs, such as their names and death dates. It should also include a brief history of the deceased person and original sole owner of the property, such as their spouses, children, and whether they died with a last will and testament. It should be signed by someone who is familiar with the facts stated in the affidavit and notarized.

Estate Administration and Probate

The process of distributing the deceased person’s property and ensuring that creditors of a deceased person are paid. Estates are distributed either according to the will or if a will does not exist, according to state law. There are a few steps in estate administration and/or probate:

• Appointment of an executor (named in a will for a probate) or administrator (appointed by the court in an estate administration).
• For a probate matter, probate the will and distribute the assets according to the will.
• For estate administrations, distribute the assets according to state law.
• Inventory and catalog the assets (real estate, personal property, bank accounts, investments, and other valuables) and determine all their dollar values.
• Pay any mortgages, loans, credit card debts, and taxes within the 6-month creditor period.
• Final report is made to probate court to approve the distribution and close the estate.

Quiet Title Action

A quiet title action is a lawsuit that seeks to have the judge determine who owns the property and in what shares. In Alabama, a quiet title action may be initiated by any party who possesses an interest in the property. It does not always require that the plaintiff or parties have a deed, but a party may need to prove some type of ownership or possessory interest in the property. The goal is to resolve claims and figure out who owns the property and in what shares. After the judge makes that decision, the judgment is recorded in the probate records.

Any of these options can be recorded with the original deed as a way to clarify a property title. They all share similar advantages and disadvantages.

Partition Action

A partition by sale under the Uniform Partition of Heirs Property Act (UPHPA) involves a specific legal process designed to protect the interests of heirs who co-own inherited property. A plaintiff heir asks for a sale of the property, and the defendant heirs who want to keep the property have a right of first refusal to buy out the interests of those parties who requested a sale. This process aims to prevent forced sales that might undervalue the property and ensure that if the property is sold, the parties receive the fair market value of their interests.

Back to Heirs Property in Alabama

Portia Johnson, Extension Specialist, Assistant Professor, Human Sciences; Ryan Thomson, Assistant Professor, Rural Sociology; Adam Rabinowitz, Extension Specialist, Associate Professor, Agricultural Economics; and Katie Keown, Visiting Professor, Agriculture Law, all with Auburn University

Revised July 2024, Heirs Property in Alabama, HE-0852