When conducting an environmental chain of title, or any historical property research, you will eventually encounter inherited lands. Family conveyances become much more prevalent as you work your way backward in the property history. With so many different ways to convey title unto family or heirs, it can sometimes be difficult to determine where to start. Let’s look at three elements of estate title and how they are recorded.
1. Testate or intestate
After the death of a property owner, referred to as the decedent in most documents, a determination must be made whether the person died testate or intestate. What this means is that the person either drafted a will for his or her estate (testate) or died without previously making plans for the conveyance of real and personal property (intestate). Intestate laws vary from state to state, but generally the spouse and children will split the estate. Siblings of the decedent would be next to inherit and then any remaining family member if none of the preceding are identified. Once eligible family members are identified, the property is transferred to the heirs by probate. If no family relatives can be found, the property is transferred to the government in a process known as escheat.
2. Wills and trusts
Wills and trusts are the most effective ways to distribute an estate after death. From a researcher’s perspective, a trust is the most straightforward and unambiguous form of property conveyance. The trouble with wills – often recorded as either an estate deed or executor’s deed – is that they distribute a percentage of the property to all heirs. Any of the heirs can then sell an inherited portion, thereby dividing the lands by the corresponding percentage. With a trust there are typically only one or two persons, referred to as trustees, who can sell the property. This keeps the title record clean by eliminating the need to create several documents when transferring and consolidating percentages among heirs.
3. Estates of wives and daughters
Today’s legal environment is very different than it was 70 or even 50 years ago. One thing to keep in mind when conducting intestacy research is that laws governing women’s role in property ownership have changed dramatically. In the 1940s and before, a man could literally will his estate out from under his spouse. Since then, homestead laws have been enacted in all states to correct this. Regardless of the terms of a will, an owner cannot transfer more than 50% of the estate of a homestead – i.e., property owned and used for personal occupancy – because the surviving spouse is entitled to at least half ownership. As researchers, it can be difficult to determine where a woman came into title, as she may not be named in the acquisition deed – even though her husband acquired title during their marriage. Marriage records are among the few indices that you can expect to be solid and reliable in nearly any county. If a widow sells a property following the death of her husband, you might need to establish that they were married when he took title. Likewise, if a woman sells title to inherited lands under her married name, you may need to consult the marriage index in order to determine her maiden name or previous married name if she is a divorcee – as that is the name under which she likely took title.
Regardless of how the estate is filed, it is always important to take your time, check all of the names involved, and be extremely thorough. Next time I’ll discuss the ever elusively filed environmental activity / use limitation.
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