Heirs property, no matter how many co-owners share ownership, is vulnerable to partition. There are two primary types of partition actions:

• “Partition in kind” involves the distribution of property shares so that each co-owner has their own divided interest.
• “Partition by sale” is the sale of a property followed by a division of proceeds among the owners.

One or several co-owners can file a partition lawsuit and force a court-ordered division of the land or sale of land. The co-owner(s) that initiates a partition action does not need the permission, agreement, or consent of the other heirs before seeking such an action. If a family member cannot be reached when a suit for partition is filed, the court will appoint a guardian ad litem to act in the interest of the missing relative. After a partition action is filed, a court can order a partition in kind or partition by sale.

For a partition in kind, the property is physically divided, also known as a partition by division or partition by allotment. Each owner receives a separate title to a distinct portion of the land. Although the court attempts to make a fair and equitable division, some land is less suitable for division and heirs may be unhappy with the size, location, or quality of the parcel they receive.

A partition by sale is when the property is sold. This has historically been sold to the highest bidder at a fraction of market value. In some cases, developers force a partition by sale by purchasing a relative’s share or interest in the property and petitioning the court to have this share sold, forcing the whole parcel to be sold. Although heirs can bid for their property, they are rarely able to outbid developers or speculators. Proceeds from
the forced sale are distributed among the co-owners according to their fractional interests, but only after court fees, the costs of conducting the sale (surveying, postage), and attorney fees are deducted.

The Uniform Partition of Heirs Property Act offers additional protections in Alabama when a partition action is filed.

Uniform Partition of Heirs Property Act

The Uniform Partition of Heirs Property Act (UPHPA) became effective in Alabama in 2015. This law helps preserve family wealth passed to the next generation in the form of real property. If a landowner dies intestate, the real estate passes to the landowner’s heirs as tenants-in- common under state law. Tenants-in-common are vulnerable because any individual tenant can force a partition. Too often, real estate speculators acquire a small share of heirs property in order to file a partition action and force a sale. Using this tactic, an investor can acquire the entire parcel for a price well below its fair market value and deplete a family’s inherited wealth in the process. The UPHPA provides a series of simple due process protections:

• ENHANCED NOTICE. Notice of filing is sent to all known heirs and a conspicuous sign is posted on the property.
• INDEPENDENT APPRAISAL. The court can appoint a disinterested licensed real estate appraiser to determine the fair market value.
• RIGHT OF FIRST REFUSAL. All co-owners have the right to buy out the co-owner who brings a partition action to the court.
• PREFERENCE FOR PARTITION-IN-KIND. Division of the land is preferred if it does not cause significant problems among co-owners.
• OPEN MARKET SALE. If in the best interest of the co-owners and more economically advantageous, the property is listed for sale at a court-determined value.

When a partition by sale is requested, the court must follow the UPHPA. This law provides more protection for heirs but can still lead to the sale of the property outside the family. The UPHPA provides an opportunity for co-owners to buy out the co-owner who brings a partition action. If a buyout does not occur, then the court must consider several factors, such as current use of the land, sentimental value, and family legacy, in deciding whether to divide up the property or sell the land. If the court determines a sale is the appropriate option, it must choose among an open market sale, sealed bid, public auction, or private sale. Each co-owner receives proceeds based on their respective fractional interest in the property.

Willis Estate

The living Willis family members each have a fractional interest in the Willis Estate according to their relation to the original owners, John and Anna. As the family grows, each member’s fractional interest gets smaller. The expenses and fees needed to maintain the property or clear the title are shared by everyone, reducing potential profit, as seen in the table.

Cost to Clear*

Assessed land value: $22,000

Court fee: ($700)

Expenses: ($1,100)

Lawyer fee (10%): ($2,200)

Total: $18,000

*Actual costs to clear a title will vary and depend on the complexity of the case.

Each person’s fractional interest depends on the chain of title, the size of the family, dates of death, and whether a decedent died with a last will and testament.

Case Study

Sara, along with her two brothers and three cousins, owns an interest in 70 acres of heirs property. While Sara sees her brothers regularly, she rarely speaks with her cousins and does not even know where one of them lives. Sara has always lived on the family’s land and, with help from her brothers, pays the taxes.

One day, she receives notice through certified mail that her cousin, who lives up north and has never helped pay the taxes, is suing her and the other co-owners for a partition sale. Sara does not want the land sold and under the UPHPA has the right of first refusal. Unfortunately, she does not have the money to buy out her cousin’s interest in the property. With the enhanced notice of the UPHPA, she tries to organize her brothers and two other cousins to pool their money but still cannot do so in time. Where previously the land is sold at the courthouse to the highest bidder—a real estate speculator from out of town—the UPHPA provides the court an option for an open market sale of the land. The land is sold for a fair market value as first determined by an independent appraisal. Sara must move off the land she has always called home, but she does receive her fair share of the proceeds.

Sara’s case is an example of a partition sale. Because Sara’s cousin shares a fractional ownership, the cousin can sell their individual interest in the land despite not contributing to land costs or upkeep. The court then makes the decisions regarding the land. With the UPHPA, Sara was able to preserve her equity in the land.

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 September 2024, Heirs Property in Alabama, HE-0852