One of the most common — and most preventable — legal problems I see in my practice involves land that passes from one generation to the next without a will. The family assumes everything will work out. It rarely does.
Here is what actually happens under Mississippi law when a landowner dies without a will.
The land does not go to one heir. It goes to all of them.
Mississippi's intestate succession law divides the property equally among the heirs — the surviving spouse, children, or next of kin — as tenants in common. If the deceased had a spouse and three children, each one immediately owns a one-fourth undivided interest in every acre. None of them owns any particular corner of the land. They all own all of it, together, whether they want to or not.
That sounds manageable with one generation. It becomes a serious problem by the second and third. When those children die without wills, their shares pass to their heirs. Three generations later, a single tract of land may have twenty or thirty owners — some living out of state, some estranged from the family, some deceased themselves with no estate ever opened. Lawyers call it "heir property." It is one of the leading causes of involuntary land loss in rural Mississippi.
Nobody can act without everyone.
To sell the land, every cotenant must sign the deed. To borrow against it, every cotenant must sign the mortgage. One reluctant heir — or one heir who simply cannot be found — stops the entire transaction. The land sits, unmanaged and unmarketable.
Any one heir can force a sale.
Here is the part that surprises most families. Under Mississippi law, any cotenant — even one who inherited a small fractional interest — can file a partition action in chancery court and ask a judge to sell the entire property. The court will typically order a public sale. The land goes to the highest bidder, often at below-market price, and the proceeds are divided. The family loses the land entirely. It happens regularly, and it is perfectly legal.
The taxes do not wait.
While the heirs are sorting out what to do, the property taxes keep coming due. Often no one feels clearly responsible, and no one pays. A tax sale can wipe out the family's ownership entirely.
The fix costs very little.
A simple will directing how the land passes at death costs a fraction of what one partition lawsuit costs — and far less than the land itself is worth. A properly drafted deed, a life estate, or a revocable trust can accomplish the same result. Any of these tools, put in place while the landowner is living, can prevent years of family conflict and the permanent loss of property that took a lifetime to acquire.
If your family owns land in Mississippi and you do not have a will, I encourage you to consult an attorney before the decision is made for you by a courthouse auction.
Jan R. Butler has practiced law in Eupora, Mississippi for fifty years, concentrating in chancery court, estate planning, real estate, and probate. He can be reached at (662) 552–7275.