Know Your Rights: Home Ownership and Inheritance (VIDEO)

Hello, my name is John Lawless, staff attorney with Bay Area Legal Services’ Disaster Relief Team and the Florida Disaster Legal Aid Helpline. I’m here with my colleague Jason to discuss some simple steps anyone can take to avoid common issues while recovering from disaster.

Today, we’re here to talk about generational, or heir property. Heir property is property that has been in a family for generations, and no formal legal processes have taken place to transfer ownership from one generation to the next.

Often times, families either do not know or simply do not see the need to formally transfer property. Especially if families agree on what should happen, families often pass property in this informal way for multiple generations without ever making a formal plan or going through a court process such as probate.

So long as taxes are paid, this condition can persist for years or even decades without anyone noticing. It is only when something unexpected happens that the family becomes aware of the issue.

One significant area where this affects families is in the event of a disaster causing damage to an heir property home. Suddenly, in order to get the help needed, the family finds itself needing to prove its ownership. When nothing has been done for years or decades, there will not be a record of the home’s current ownership. In fact, the home’s current ownership by law might be very different from what the family intended or expected.

In Florida, a person’s homestead property passes automatically to descendants, or heirs, hence “heir” property. This is not the case in every state, and can put disaster survivors in a better position to begin to prove their ownership. That automatic transfer, however, is not documented in official records – the place where deeds, mortgages, and other documents are placed to give public notice of ownership. In order to have that notice documented, or “recorded”, something has to be done. The most common thing to be done is for the family to file a probate in court.

A probate distributes the property of a person who has died, and makes a record of what happens to their home among other things. Depending on where the probate is being filed, how much property there is to distribute, and how many people there are to distribute the property to, this can be a short or long process. For survivors of a disaster, a long process can result in major delays in receiving assistance. For that reason, it is a good idea to check the status of your property before a disaster.

One easy way to start is to go to your local property appraiser’s website and search your property. If it is your name that shows up, you are on the right track. If not, you may have an issue. The property appraiser doesn’t determine ownership, but it does give good clues of whether more investigation needs to be done. If you are confused about what you see, it is a good idea to contact your local legal aid organization for help.

Now, let’s take a look at how this might work for a family. I’ve asked Jason to bring a copy of his deed for us to see. Jason, did you bring your deed?

Great. Now, let’s take a closer look with a little help from the J-Viewer.

Uh-oh. That’s the wrong Jason. Let’s take a look at Jason’s family tree to see who would have inherited the house.

Wow. Look at those Jason's. Let’s see… if only people on the bottom row are living, that makes for four owners. Florida law provides for each descendant receiving an equal share of the homestead, whether or not they live there. That share too will pass down to later generations, so the longer the family waits, the more owners there are to deal with.

Let’s take a look at that deed again, and see how this might look if more time has passed.

Looks like we missed a generation last time. Let’s see that family tree again.

Jason seems to have a little bit of a mess on his hands. Because the property has passed through so many generations, this might take more than one probate to clean up. It can be done, but it’s not going to be fast or easy. Jason might want to get started now, so he’s prepared if and when the time comes when he needs proof of ownership.

If you haven’t done so for yourself, now is a great time to make sure you know who’s name is on your home’s title. If it’s not yours, you should strongly consider asking for advice. Even if things seem fine now, there are many reasons you may eventually want or need to have your name on your house’s title. Recovering from disaster is one, but even having regular work done can be a problem, and it will be very difficult to borrow money against the house if you can’t show that it is yours. The sooner you get started on fixing a problem, the sooner you’ll be ready when disaster strikes.

Now, if you and your family keep these tips in mind, you’ll be a lot more resilient in the aftermath of disaster, and a lot less like Jason.

We appreciate you taking the time to listen. For more information on what to do in the wake of a disaster, please visit the following resources.