HEIRS’
PROPERTY:
Understanding the Legal Issues in
South Carolina
By Francine Miller
November 2022
Introduction
The purpose of this factsheet is to prevent the loss of land owned as heirs’ property in South Carolina.
It examines state laws that are relevant to heirs’ property owners in South Carolina, 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 South Carolina | 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.
1
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.
2
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.
For land records, individuals can go to the
probate court in their county to review any
judgment or probate records regarding
the land.
3
Individuals can also go to the
property appraiser’s ofce in the county
where the land is located to trace land
ownership, and to the county clerk of
court to review any judgment or records
regarding the land (it’s helpful to search
by the heirs’ names). Another useful place
to search for deed records is the Register
of Mesne Conveyances (the RMC ofce,
also known as the deeds ofce) in the
county where the property is located.
These records may recite family history
in the deed clauses. Finally, some county
appraiser or tax assessor’s ofces have
“property cards” that record transactions
regarding the property, which can be
helpful when gathering information to use
to search for deeds in the RMC 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 South Carolina | 3
Intestate Succession in South Carolina
4
The following chart describes some of the many possibilities under South Carolina 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 (and/or grandchildren) but no
spouse
the children inherit everything equally
amongst themselves, and if any of the
decedent’s children have died and they
had children, those grandchildren inherit
what the child would have inherited equally
amongst themselves
a spouse but no children the spouse inherits everything
a spouse and one or more children the spouse inherits half of the intestate
estate, and the child or children split the
other half equally
parents but no spouse or children the parents inherit everything equally
siblings but no spouse, children, or parents the siblings inherit everything equally
children born outside of marriage Children born outside of marriage inherit
from a man if paternity is established in
court by clear and convincing proof, either
during or after the man’s lifetime. A woman
who gives birth to a child is presumed to
be their mother, from whom the child will
inherit, unless there is evidence of adoption
or a termination of parental rights.
HEIRS’ PROPERTY: Understanding the Legal Issues in South Carolina | 4
Understanding Partition Law
Heirs who inherit land intestate (without a
will) own it as tenants in common.
5
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.
6
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.
In 2017, the South Carolina legislature enacted
the Clementa C. Pinckney Uniform Partition of
Heirs’ Property Act.
7
The law changes the way
partition sales occur in states that have adopted
it. In South Carolina, 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 South Carolina | 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
South Carolina
When a landowner fails to pay annual property
taxes, the overdue amount becomes a tax lien.
The governmental taxing authority may then
begin a process to sell the land through a tax
sale.
In South Carolina, taxes on real property are due
between September 30 and January 15 of the
following year.
8
If property taxes are not paid by
January 15, interest accrues on the taxes due.
Landowners have until March 16 to pay taxes
plus any interest accrued. If they are not paid
by March 16, the county tax assessor issues a
tax execution on the property—this begins the
process that eventually can result in a tax sale.
9
The assessor must serve at least four notices
of delinquency on the landowner before the
property is sold at auction.
10
South Carolina heirs’ property landowners
generally have an opportunity to “redeem,” or
get back their land, after a sale takes place.
11
Generally, the landowner can redeem the
property within 12 months of the sale of the
property by paying all unpaid taxes, interest,
and penalties, and all costs and fees, along with
interest at varying rates depending on when the
redemption takes place.
12
However, there is at least one county in South
Carolina that does not allow heirs’ property
owners to redeem their land, based on a narrow
interpretation of who is the “owner” of the land.
13
Consequently, it is not good practice for heirs’
property owners to rely on the ability to redeem
property to get their land back after not paying
taxes in full.
If the original landowners fail to redeem their
property, title in the name of the purchaser of the
property is no longer able to be challenged 24
months after the date of sale.
14
HEIRS’ PROPERTY: Understanding the Legal Issues in South Carolina | 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 for ten (10)
years, erecting a “substantial enclosure,” and
managing the land and property so that it has
been “cultivated and improved.”
17
Condemnation and
Eminent Domain
Condemnation occurs when the local, state or
federal government, or private entity, 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. In South Carolina,
the Eminent Domain Procedure Act governs
condemnation actions.
18
The Act sets forth
requirements for notice, appraisal of the
property, and trial of the action. Importantly,
if a landowner objects to the condemnation
action, they must le a separate action with
the court within 30 days of receiving notice that
the property is being condemned.
19
Note that
litigation expenses including legal fees may be
awarded to the prevailing party in an action
challenging the condemnation.
20
Potential Tax Savings for Agricultural Land
Heirs’ property owners of agricultural land should consider the potential for nancial savings by
receiving an agricultural tax deferment.
15
For tax purposes, if a parcel of land is used for agricultural
purposes (including timber sales), it is possible that the tax assessment could be based on that
agricultural use, rather than at the value of the land if it was being used for residential or commercial
development. This is known as taxation based on the fair market value for agricultural purposes.
In order to qualify, there are requirements for minimum acreage (5 acres for timber, 10 acres for
other agricultural uses), and a complicated formula set forth by statute regarding how to compute
such an assessment. It is also important to know that if the use of the land changes and it no longer
qualies for the reduced land use assessment, the landowner may have to pay back three years’
worth of taxes that were saved (this is known as “rollback”).
16
HEIRS’ PROPERTY: Understanding the Legal Issues in South Carolina | 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 United States Department of Agriculture’s Farm Service
Agency (FSA) runs an Agricultural Mediation Program which can be used by
heirs’ property owners to mediate family disputes. The FSA provides funding
to relevant state agencies to support mediation between individuals involved
in many kinds of disputes related to agricultural issues. These include USDA
decisions on loans, conservation programs, wetland determinations, and rural
water loan programs; lease issues between landlords and tenants; family farm
transition issues; farmer-neighbor disputes; and family disputes regarding
heirs’ property.
If family members co-owning heirs’ property cannot reach agreement,
agricultural mediation services can help. In South Carolina, families can
reach out to:
Federation of Southern Cooperatives
Mediation Services
Georgia eld ofce:
624 W Oglethorpe Blvd.
Albany, GA 31701
Phone: (229) 432-5799
Fax: (229) 439-0894
Email: [email protected]
Website: federation.coop
The Center for Heirs’ Property Preservation
8570 Rivers Avenue, Suite 170
N. Charleston, SC 29406
Phone: (843) 745-7055
Email: [email protected]
Website: heirsproperty.org
HEIRS’ PROPERTY: Understanding the Legal Issues in South Carolina | 8
Additional Resources
Organizations in South Carolina Supporting Heirs’ Property Owners
The Center for Heirs’ Property Preservation
8570 Rivers Avenue, Suite 170
N. Charleston, SC 29406
Phone: (843) 745-7055
Email: [email protected]
Website: heirsproperty.org
South Carolina Legal Services
(multiple ofces throughout South Carolina)
Phone: (888) 346-5592
Website: sclegal.org
To apply online: lawhelp.org/sc/online-intake
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 South Carolina | 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.
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.
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 South Carolina | 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 Josh Walden, Esq. of the Center
for Heirs’ Property Preservation 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 South Carolina | 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 Probate Court, S.C. J. BrAnCh, https://www.
sccourts.org/probatecourt/ (last visited
Nov. 3, 2022).
4 S.C. Code Ann. § 62-2-101 et seq. (2014).
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 S.C. Code Ann. § 15-61-310 et seq. (2018).
8 S.C. Code Ann. § 12-45-70 (2013).
9 S.C. Code Ann. § 12-45-180 (2012).
10 S.C. Code Ann. § 12-51-40 (2013).
11 S.C. Code Ann. § 12-51-90 (2012).
12 S.C. Code Ann. § 12-51-90 (2012).
13 See David Slade, SC Family That Lost Heirs
Property Over $112 Tax Bill Loses Again in
Court, PoSt & CoUrier (Oct. 2, 2022), https://
www.postandcourier.com/news/sc-family-
that-lost-heirs-property-over-112-tax-bill-
loses-again-in-court/article_820beaf2-
3b56-11ed-a191-a3adf74fed81.html.
14 S.C. Code Ann. § 12-51-150, 160 (2012).
15 S.C. Code Ann. § 12-43-220(d) (2015).
16 S.C. Code Ann. § 12-43-220(d)(4) (2015).
17 S.C. Code Ann. § 15-67-210 (2013); S.C. Code
Ann. § 15-67-220 (2012); S.C. Code Ann. § 15-
67-250 (2016).
18 S.C. Code Ann. § 28-2-10 et seq. (2013).
19 S.C. Code Ann. § 28-2-470 (2012).
20 S.C. Code Ann. § 28-2-510 (2016).
HEIRS’ PROPERTY: Understanding the Legal Issues in South Carolina | 12