Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, February 6, 2024

Article: Heirs Property: An Examination of Probate Costs and the Costs of Postmortem Probate Inaction

Reid Kress Weisbord (Professor of Law, Rutgers Law School & Visiting Professor of Law, Columbia Law School) recently published, Heirs Property: An Examination of Probate Costs and the Costs of Postmortem Probate Inaction, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Abstract:

“Heirs property” describes a legal limbo that occurs when multiple heirs or will beneficiaries inherit real property as tenants-in-common without promptly probating the estate to transfer marketable title out of the decedent’s name. While other areas of probate law have demonstrated remarkable sophistication by supplying battled-tested default rules as contingencies for inaction, lawmakers have yet to implement effective contingencies for postmortem probate inaction. The lacuna, in turn, has led to a growing dilution of inherited wealth from estates plagued by heirs property, a phenomenon that disproportionally affects individuals already impacted by the racial wealth gap.

This Article draws on recent empirical research to examine the demography of heirs property. It then takes a closer look at the adverse economic impact of postmortem probate inaction by and upon the decedent’s inheritors. Using dollar amount estimates based on the recent field research in Philadelphia by the Pew Charitable Trusts, the Article explains and illustrates how the complicated task of untangling heirs property can significantly multiply probate costs. The Article concludes by surveying a package of innovative law reform proposals that could help mitigate the dilution of inherited wealth from heirs property.



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