Private Law Theory

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 battle-tested default rules as contingencies for inaction, lawmakers have yet to implement effective contingencies for post-mortem probate inaction. That lacuna, in turn, has led to a growing dilution of inherited wealth from estates plagued by heirs property, a phenomenon that disproportionately affects individuals already impacted by the racial wealth gap.

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

Weisbord, Reid K, Heirs Property: An Examination of Probate Costs and the Costs of Postmortem Probate Inaction (August 7, 2023), 49 ACTEC Law Journal 113 (2024).