Heirs' Property: Understanding the Legal Issues in Arkansas

HEIRS’

PROPERTY:

Understanding the Legal Issues in

Arkansas

By Francine Miller

November 2022

Introduction

The purpose of this factsheet is to prevent the loss of land owned as heirs’ property in Arkansas. It

examines state laws that are relevant to heirs’ property owners in Arkansas, and outlines steps they

can take to resolve property issues before seeing an attorney.

It also explains relevant legal issues, including:

1. how to identify the legal heirs of the original ancestor who owned the land,

2. state partition law,

3. state law that permits the sale of land due to unpaid property taxes, and

4. state law addressing adverse possession and condemnation

(these terms are dened in the glossary, below).

This resource may be useful to professionals assisting heirs’ property owners, such as lawyers,

nonprot and community development advocates, and cooperative extension agents.

For a glossary of legal terms used in this factsheet, refer to page 10.

What is Heirs’ Property?

Heirs’ property (sometimes known as family land) is property that has been transferred to multiple

family members by inheritance, usually without a will. Typically, it is created when land is transferred

from someone who dies without a will to that person’s spouse, children, or other heirs who have a legal

right to the property. However, even if the person who died had a will, they may still create heirs’ property

if they leave land to multiple heirs without specifying which heirs get which section of the land.

When heirs’ property is created, the heirs own all

the property together (in legal terms, they own

the property as “tenants in common”). In other

words, they each own an interest in the undivided

land rather than each heir owning an individual

lot or piece of the land. In addition, unless the

heirs go to the appropriate administrative

agency or court in their jurisdiction and have the

title or deed to the land changed to reect their

ownership, the land will remain in the name of the

person who died.

For the heirs, owning property as tenants in

common without a clear title can lead to many

challenges. Because it is difcult for heirs to prove

ownership, they may be unable to access loans

and mortgages, apply for USDA grants or loans,

and build wealth from the land by engaging in

commercial activity, such as selling timber or

other resources—all of which require proof of

ownership. It also leaves the property vulnerable

to being acquired by real estate developers and

unscrupulous actors.

Learn More Using

the Farmland Access

Legal Toolkit

For a more comprehensive overview

of heirs’ property issues, visit

farmlandaccess.org/heirs-property.

Find additional advice for heirs’

property owners, including how to

proactively avoid and address legal

challenges, at farmlandaccess.org/

suggestions-for-heirs-property-

owners.

Grandfather

Title Land

Passes

to Heirs

Remains in

Grandfather’s Name

Heirs who inherit

the property do not have

clear legal title to the land.

This is referred to as “cloudy title.”

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 2

Identifying Heirs

To resolve heirs’ property issues, an important rst

step is tracing the ownership of the land from the

original titled owner to the current owners. Many

practitioners encourage heirs’ property owners to

build a family tree identifying all the heirs, deceased

and living. Specically, heirs’ property owners will

want to collect:

1. the heirs’ birth and death dates,

2. county of death,

3. proof of whether they died with a will, and

4. any current contact information for living heirs.

The goal is to gather information about anyone who

may have at any time held any interest in the land,

so it is important to identify all the heirs, all of whom

might be entitled to an interest in the land.

When a person dies with a valid will, they die

“testate” and their will determines who inherits their

property.

When a person dies without a will, they

die “intestate” and state law governing intestate

succession determines who inherits that person’s

real estate and other assets.

Who inherits a person’s

land by intestate succession varies depending on

which family members survive the decedent.

There are generally a number of types of living heirs

entitled to inherit from a decedent, including: the

spouse of the decedent; biological and adopted

children, and their descendants; parents of the

decedent; siblings of the decedent, and if they have

died, their descendants (the decedent’s nieces and

nephews); and grandparents and cousins.

Finding the Family

(Genealogy) and Land Records

Resources to help identify and locate

heirs and build the family tree include

genealogists and family history sites such

as ancestry.com, myheritage.com, and

familysearch.org. Family bibles can be

a good source of information and can

sometimes be used to show heirs. Local

libraries can also be a great resource for

genealogical records and research help.

Additional information as to births, deaths,

and marriages can be obtained from the

Vital Records Department of the Arkansas

Department of Health.

Individuals can go to the county ofces

where land is located to review records

pertaining to the land. These records may

include:

• Circuit court records determining

land ownership or ancestry (such as

paternity actions and divorces);

• Probate records such as wills, afdavits

of heirship, and nal probate judgments;

• County real estate records (including

deeds and surveys);

• Tax assessor’s and collector’s records

(which may indicate potential heirs, but

do not prove ownership);

• Records of marriage recorded with the

county clerk’s ofce.

Uncle AuntFather

Ms. Smith

(Farming Property)

Brother Sister Cousin Cousin Cousin

Cousin

(Deceased)

Cousin

ChildChild

Grandfather

(On Deed)

An example of a simple family tree for Ms. Smith

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 3

Intestate Succession in Arkansas

The following chart describes some of the many possibilities under Arkansas intestate succession laws.

If there are multiple generations involved, it is likely going to be important to work with an attorney to

successfully identify all the current owners.

If a person dies with: Here’s who inherits:

children or other descendants but no spouse the children and descendants inherit all

intestate property

a spouse of at least three years but no

children

the spouse inherits everything

a spouse and children the spouse gets one-third of real property in

the form of a life estate and one-third of the

personal property

the children inherit all of the real property

subject to the spouse’s life estate, and two-

thirds of the personal property

a spouse of less than three years but no

children

the spouse inherits half of all property

parents, siblings, or other relatives inherit the

remaining half of the property

parents but no children or spouse the parents inherit everything

siblings but no children, spouse, or parents the siblings inherit everything

children born outside of marriage If the child’s mother is the decedent, the child

inherits in the same way a child born within

a marriage does. If the child’s father is the

decedent, then they receive a share if (1) the

decedent later married the child’s mother; (2)

a court establishes paternity; (3) the decedent

acknowledged in writing that he was the

child’s father; (4) the decedent consented to

his name on the child’s birth certicate; or (5)

the decedent has promised in writing or been

ordered by a court to support the child. These

rights must be established within 180 days of

the death of the father.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 4

Understanding Partition Law

Heirs who inherit land intestate (without a

will) own it as tenants in common.

Tenants in

common each own an undivided interest in the

whole parcel of land, which means that none of

the heirs can claim any specic piece of land. As

tenants in common, each heir has equal rights

to use and occupy the land.

Heirs’ property owners are especially

vulnerable to losing their land

because they are subject to partition

actions to physically divide or sell the

land.

As co-owners of the property, any of the tenants

in common can bring an action in court asking

for partition of the property.

There are two ways a court can partition or

divide the property: partition in kind or partition

by sale. If a court orders partition in kind, the

land must be physically divided equitably and

proportionate to the fractional interest and

value of each co-owner’s share. If the court

orders partition by sale, it triggers a process that

requires the property to be sold.

Historically, when a court ordered partition by

sale, the property was sold to the public. This

typically happened by a mandatory sale at

an auction. Often, property owners lost their

family legacies and generally received a small

percentage of what the land was worth—far

below the property’s fair market value.

This has

resulted in a tremendous amount of land loss

among African Americans in the United States.

Since 2010, there have been efforts to pass

legislation at the state level to ensure that heirs’

property owners have certain due process rights,

or fair treatment under the law in accordance

with established rules and requirements. This

includes protections to ensure that property

sold in a partition action is sold for fair market

value. That legislation, drafted by the Uniform

Law Commission, is called the Uniform Partition

of Heirs Property Act (UPHPA). It provides a more

equitable system for partition actions of heirs’

property.

The UPHPA became effective in Arkansas on

January 1, 2016, and applies to all actions led

after that date.

The law changes the way

partition sales occur in states that have adopted

it. In Arkansas, the UPHPA made three major

reforms to partition law:

1. If a co-owner brings a partition action in

court, the court must provide an opportunity

for the other co-owners to buy out the co-

owner who brought the partition action.

2. If there is no buyout of co-owners’ interests

in the property, then the law provides a set

of factors for the court to consider that take

into account sentimental value and family

legacy when determining whether to order

a partition in kind and divide up rather than

sell the property.

3. If the court does not order a partition in

kind, the UPHPA requires the court to sell

the property at fair market value and

lays out a process for the property to be

fairly appraised and sold, with proceeds

distributed to all co-owners based on their

respective shares.

Court actions for partition should be avoided

if possible. If a physical partition of the land

is desired by all co-owners, they should

attempt to divide the property voluntarily by

agreement with the help of a surveyor and real

estate attorney. If an heir receives a notice of

a partition action, they should immediately

consult an attorney to protect the heirs’ rights in

the land. Historically, partition sales have been

devastating to African American landowners,

resulting in forced sales of millions of acres of

property and the loss of a tremendous amount

of land, wealth, and family legacy.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 5

Avoiding Tax Sales

It is very important for heirs’ property owners

to make sure property taxes are paid in full

because tax sales can lead to loss of land.

Property becomes subject to a tax sale when a

landowner fails to pay annual property taxes on

time. The overdue amount generally becomes a

tax lien, which may cause the local government

authority to begin a process to sell the land.

Heirs’ property owners should not

wait to clear title to the property (see

denition in the glossary) before

paying the property taxes.

Note that in many families, one or more of

the heirs pays the total amount of the annual

property taxes due, including the portions owed

by other co-owners. Ideally, the other co-owners

reimburse the family members who cover their

share. If they do not, the co-owner who paid the

taxes can get reimbursed through voluntary

repayment, distribution of income received from

the property, or sale proceeds if the land is sold.

Importantly, payment of taxes does not increase

a co-owner’s ownership interest. Rather, it

creates a claim for reimbursement from any co-

owner who is not paying the taxes. Anyone who

pays taxes on the property should keep tax bills

and receipts so that they can request or claim

reimbursement.

How Tax Sales Work

in Arkansas

In Arkansas, property taxes are due each year

on October 15. If a landowner does not pay

their property taxes within one year of the due

date, they become delinquent, and their land is

forfeited to the state.

The county collector holds

the land for a year after delinquency. During

that period, if the taxes due (including penalties

and interest) are not paid, the property is

transferred by certication to the Commissioner

of State Lands. However, notice is provided to

the landowner with a statement outlining all

taxes, penalties, interest, and costs due prior to

transfer.

Between 30 and 40 days before transfer to

the Commissioner of State Lands, the county

collector must publish notice in a local

newspaper that the property will be forfeited. The

notice must include the name of the property

owner, the amount needed for the owner to buy

back the property (called “redemption”), and the

date by which the property must be redeemed.

Once the land is transmitted, the state owns the

land and can sell it after holding it for at least

one year. The state must notify the former owner

by mail of any sale by the Commissioner of State

Lands.

To redeem the property, the landowner must

pay the back taxes due, plus any fees that have

accumulated prior to certication to the state.

If the landowner cannot redeem the property,

the county collector will transmit the land to

the state. The landowner also has another

opportunity to redeem the property by paying

the taxes and fees due before the state sells

the land.

There are special rules for property

considered a homestead because a homestead

qualies for a special tax assessment as a

residence.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 6

Avoiding Adverse Possession

and Condemnation

Heirs’ property owners must also manage and monitor their land to ensure the property is not taken

through adverse possession or eminent domain (that is, condemned by the local, state, or federal

government).

Adverse Possession

Adverse possession allows a trespasser to

become the owner of land they do not own if

they meet certain criteria and bring an action in

court asking a judge to declare them the owner.

Failure to monitor and manage heirs’ property

can invite neighbors and others to develop a

strong case for seeking ownership of land in this

way. To avoid this, “No Trespassing” signs should

be posted, and if a family member cannot check

the land periodically, a manager should be hired.

A person can gain full ownership of land they do

not own by occupying the land and meeting the

following requirements.

The occupation of the land must be:

• actual and hostile—the person must live or

work on the land, “exercising control” without

permission;

• open, notorious, and visible—the possessor

should be visibly using the property as an

owner would;

• continuous and uninterrupted for 7 years, but

if the land is “wild and unimproved,” for 15

years;

• exclusive—the person must possess the land

for themselves;

• intentional—the possessor must know that

someone else owns the land;

• accompanied by the payment of all taxes due

for 7 or 15 years, depending on whether the

land is “wild and unimproved,” as above.

In Arkansas, unlike many other states, the person

claiming adverse possession must have paid the

property taxes for the occupied land. In addition,

the person claiming adverse possession must at

least allege that they knew the land belonged to

someone else while they occupied it.

Condemnation and

Eminent Domain

Condemnation occurs when the local, state

or federal government forces a landowner to

sell their land to the government. State and

federal governments, local city and county

governments, and private businesses can take

private land under “eminent domain” laws if they

can show that doing so is necessary for a public

use or purpose. It is critical that heirs’ property

owners monitor their property for notice of any

such action in order to take advantage of legal

protections before condemnation occurs.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 7

Agricultural Mediation Services

Family disputes are unfortunately common with heirs’ property. There are often

multiple generations of heirs who must come to an agreement, which can be

difcult. The US Department of Agriculture’s Farm Service Agency (FSA) runs

the Agricultural Mediation Program which can, in some states, be used by heirs’

property owners to mediate family disputes.

Unfortunately, as of November 2022, the Arkansas Department of Agriculture

only offers mediation services between landowners and their creditors. For

example, if a lender denies a farmer a loan, the farmer can request mediation

before resorting to an administrative appeal within the relevant agency.

Mediation helps producers avoid signicant costs associated with litigation.

For help on these types of creditor issues, families can contact:

Arkansas Agricultural Mediation Program

Arkansas Department of Agriculture

1 Natural Resources Drive

Little Rock, Arkansas 72205

Phone: (501) 225-1598

Email: [email protected]

Website: agriculture.arkansas.gov

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 8

Additional Resources

Organizations in Arkansas Supporting Heirs’ Property Owners

Keeping it in the Family

Sustainable Forestry and African American Land

Retention (SFLR) Program

Kandi Williams

Outreach Coordinator

University of Arkansas at Pine Bluff

Phone: (870) 571-9428

Fax: (870) 667-7047

Email: [email protected]

The KKAC Organization

Furonda Braseld, Esq.

Legal Director, Heirs’ Property Clearinghouse

Phone: (870) 330-7122

Fax: (870) 251-0410

Email: furonda@braseldlawrm.com

Website: kkac.org

DISCLAIMER: This document provides general legal information for educational purposes only. It is not meant to

substitute, and should not be relied upon, for legal advice. Each operation and situation is unique, state laws vary,

and the information contained here is specic to the time of publication. Accordingly, for legal advice, please

consult an attorney licensed in your state.

Visit farmlandaccess.org

for more resources related

to accessing, transferring,

and conserving farmland.

For a list of national organizations helping heirs’ property owners, visit

farmlandaccess.org/heirs-property/#organizationsprovidingassistance.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 9

Glossary

The following denitions are from multiple sources and are not specic to any particular state statute.

Of course, any statutory denitions (terms dened in the laws of a particular state) would overrule these

denitions in any legal proceeding.

Adverse possession

A legal doctrine that describes when

someone occupies property for a

period of time and then claims legal

rights to it.

Ancestor

A person from whom someone is

descended; a direct blood relative.

Clearing title

The legal process of proving and

obtaining a deed for the current

owners of heirs’ property.

Condemnation/eminent

domain

The right of a government or its agent

to take private property for a public

purpose, with compensation to the

property owner (such as a public

utility taking land so they can build

power lines).

Co-tenants

Those who own heirs’ property with

others. In a partition action under the

Uniform Partition of Heirs Property

Act, the co-tenants are all the co-

owners of heirs’ property, regardless

of the size of the fractional interest

owned. See the denition of tenants in

common, below.

Decedent

A person who has died; decedent

is also often referred to as “the

deceased.”

Deed

A legal document, usually recorded

in the ofce of a town or county that

keeps land records, often used to

show the legal owner(s) of a piece of

property.

Descendant

A person related to someone who

has died, either directly (parent, child,

grandchild) or indirectly (aunts and

uncles, cousins). This includes anyone

legally adopted.

Estate

The real property (land and buildings)

and personal property (clothing,

furniture, cars, and so on) of a person

who has died. In probate settings,

the “estate” includes the total assets

(things one owns) and liabilities

(debts) of a person who has died.

Heirs

People who are entitled under state

“intestate” law to inherit property from

someone who has died.

Intestate

A person dies “intestate” when they

die without a valid will.

Intestate real estate

Land and other property (such as

houses or buildings) owned by

the decedent when they died and

not addressed in a will, and which

does not pass to anyone based on

language in the deed itself (such as a

joint survivorship clause).

Intestate succession

State laws addressing who inherits

property from someone who dies

without a will (or when a will is found

to be invalid), or any property that

was not included in the decedent’s

will.

Joint tenants

Two or more owners of equal shares

of property who have a right of

survivorship, meaning that if one joint

tenant dies their share goes to the

other joint tenant(s) in equal shares.

Life estate

Property owned by a person during

their lifetime, which is automatically

transferred to someone else upon

their death.

Personal property

Tangible items such as cars, jewelry,

household items, and bank accounts,

investments, and other nancial

assets; all property owned by

decedent that is not real property

(land and buildings) (see denition

below).

Probate

The legal process of proving the

validity of a will in court, and handling

the estate of a decedent whether

there is a will or not.

Real property

Land and any permanent structures

on the land, including homes and

other buildings.

Tax lien

A state or local government’s right to

keep real estate for payment of some

debt or obligation.

Tax sale

A legal process used by a county

or town to take the property of a

landowner who has not paid their

property taxes in full and sell it to

recover the unpaid taxes.

Tenants in common

People who each own an individual,

undivided interest in property (also

known as “co-tenants”), but not

necessarily equal interests. See the

denition of co-tenants, above.

Testate

A person dies “testate” when they

have a valid will.

Title

Refers to ownership rights in land.

As a legal concept, title exists even

without any documents, but a deed is

the most common way to determine

who has title in land. (See denition of

deed, above.) Sometimes a will or an

afdavit may be used to document

ownership rights.

Undivided interest

An interest in property that is held

in common with others in a single

property. These interests can be

unequal; that is, the value of each

interest can vary.

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 10

Acknowledgments

This resource was developed as a collaboration between Vermont Law and Graduate School’s Center

for Agriculture and Food Systems, the Federation of Southern Cooperatives, and the Policy Research

Center for Socially Disadvantaged Farmers and Ranchers at Alcorn State University, with funding from

the US Department of Agriculture’s National Agricultural Library. This project was led by Francine Miller,

Senior Staff Attorney and Adjunct Professor, Center for Agriculture and Food Systems at Vermont Law

and Graduate School. Special thanks to Heather Francis, Constantin Mathioudakis, and Suhasini Ghosh

for their extensive work researching and developing this resource as student clinicians and research

assistants as well as Legal Food Hub Fellow Andrew Marchev. We thank Amy Pritchard, Esq., for reviewing

this report.

About CAFS

The Farmland Access Legal Toolkit is a project of Vermont Law

and Graduate School’s Center for Agriculture and Food Systems

(CAFS), which uses law and policy to build a more sustainable and

just food system. With local, regional, national, and international

partners, CAFS addresses food system challenges related to food

justice, food security, farmland access, animal welfare, worker

protections, the environment, and public health, among others.

CAFS works closely with its partners to provide legal services that

respond to their needs and develops resources that empower the

communities they serve. Through CAFS’ Food and Agriculture Clinic

and Research Assistant program, students work directly on projects

alongside partners nationwide, engaging in innovative work that

spans the food system.

Please visit www.vermontlaw.edu/cafs to learn more.

farmlandaccess.org

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 11

Endnotes

1 It is important to le a deceased person’s will along with a petition to probate the will with

the local court where the person resided and where the property is located as soon as

possible after the person has died.

2 Estate planning and will making are critical to avoid the challenges for heirs’ property

owners outlined above. For more information on the importance of wills and estate

planning see the Farmland Access Legal Toolkit. Heir’s Property, Cntr. AgriC. & Food SySS.,

https://farmlandaccess.org/heirs-property/#challenges (last visited Oct. 25, 2022); Wills,

Cntr. AgriC. & Food SySS., https://farmlandaccess.org/wills (last visited Oct. 25, 2022).

3 Ark. Code Ann. § 28-9-203 et seq. (2019).

4 Ark. Code Ann. § 28-9-209(d) (2016).

5 Heirs who inherit property through a valid will may also own the land as tenants in

common if it is left to them without designation of the specic land each heir receives.

6 Thomas W. Mitchell, Historic Partition Law Reform: A Game Changer for Heirs’ Property

Owners, texAS A&M Univ. SCh. L. 74 (June 12, 2019), https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=3403088.

7 Ark. Code Ann. § 18-60-1001 et seq. (2017).

8 Ark. Code Ann. § 26-37-107 (2017).

9 Ark. Code Ann. § 26-37-101 (2012).

10 Ark. Code Ann. § 26-37-102 (2018).

11 Ark. Code Ann. § 26-37-301 (2012).

12 Ark. Code Ann. § 26-37-301 (2012).

13 Ark. Code Ann. § 26-37-301 (2012).

14 Ark. Code Ann. § 18-11-106 (2010).

15 Ark. Code Ann. § 18-11-102 (2015); Ark. Code Ann. § 18-11-103 (2020).

16 Ark. Code Ann. § 18-15-101 et seq. (2015).

HEIRS’ PROPERTY: Understanding the Legal Issues in Arkansas | 12