1 Heir Property in Georgia Attorney Training Manual 2010 Georgia Appleseed, Inc. All rights are reserved, except as follows: Free copies of this manual may be made for personal use. Reproduction of more than five (5) copies for personal use and reproduction for commercial use are prohibited without the written permission of the copyright owner. The work may be accessed for reproduction pursuant to these restrictions at
2 Disclaimer The Young Professionals Council, Georgia Appleseed, and the author(s) (the Committee ) present the information in this Heir Property in Georgia Attorney Training Manual (the Manual ) as a public service to pro bono attorneys who represent clients with heir property. The Committee makes no warranties, express or implied, concerning the information contained in this Manual or other resources to which it cites. Forms included in the Manual are intended for illustration purposes only; users of the manual must seek current forms from the appropriate court or agency. This Manual is not intended to provide legal advice. Non-lawyers should consult a licensed attorney in all legal matters. This Manual does not create a lawyer-client relationship between the Committee, and you and/or your client. The Committee, its employees, agents, or others that provide information on or through this manual will not be liable or responsible to you or your client for any claim, loss, injury, liability, or damages related to your use of this Manual.
3 TABLE OF CONTENTS INTRODUCTION ACKNOWLEDGMENTS CHAPTER 1 Section 1 Section 2 Section 3 Exhibit 1: Exhibit 2: EFFECTIVE CLIENT REPRESENTATION Who is Your Client? What is Your Client s Goal? Examples of Ethical Situations Heir Property Intake Form Risk Disclosure Letter CHAPTER 2 TITLE INSURANCE Section 1 Ascertaining the Status of Title Section 2 Potential Title Issues and Resolutions Section 3 Sources for Further Assistance CHAPTER 3 CLEARING TITLE Section 1 Determine How the Property is Titled Section 2 Obtain the Client s Family Tree Section 3 Retrace the Chain of Title, if Necessary Section 4 What if it s Not that Simple? Exhibit 1: Map of Georgia Counties Exhibit 2: Land Record Information for Georgia Counties CHAPTER 4 INTESTACY Section 1 Intestate Heirs Section 2 Probate Administration Section 3 Administration of Decedent s Property Exhibit 1: Heirs Determination Worksheet Exhibit 2: Probate / Administration Processes
4 TABLE OF CONTENTS CHAPTER 5 QUIET TITLE Section 1 Considerations when there are Competing Interests in the Property Exhibit 1: Quitclaim Deed Exhibit 2: Petition to Quiet Title CHAPTER 6 ADVERSE POSSESSION AND OUSTER IN GEORGIA Section 1 Adverse Possession Section 2 Ouster Section 3 Abandonment CHAPTER 7 PARTITION Section 1 Statutory Partitions Section 2 Equitable Partitions Exhibit 1: Sample Notice of Application Exhibit 2: Sample Complaint for Partition In Kind Exhibit 3: Sample Notice of Writ CHAPTER 8 Section 1 Section 2 GEORGIA TAX SALES: SALES OF REAL PROPERTY FOR UNPAID AD VALOREM PROPERTY TAXES Payment of Property Taxes Tax Sales CHAPTER 9 POWERS OF ATTORNEY Section 1 Conditional Power of Attorney Section 2 Financial Power of Attorney Section 3 Sample Forms Section 4 Revocation or Termination Exhibit 1: Statutory Form of Financial Power of Attorney Exhibit 2: Acceptance of Appointment Exhibit 3: Form of Power of Attorney
5 INTRODUCTION An end to poverty begins with property rights, observed Sharon Hill, Georgia Appleseed Executive Director. This phrase came to our attention when reading about the eradication of global poverty, but it seemed to describe perfectly our motivation in bringing the Heir Property Project to Georgia. Georgia Appleseed, founded in 2005, is a non-partisan not-for-profit dedicated to law that serves the public interest. Its Young Professionals Council (YPC) encourages younger lawyers and other professionals to engage in pro bono activity that will help level the playing field for Georgians who often do not have a voice to effect systemic change. In 2008, the YPC adopted heir property as its signature project, and Georgia Appleseed was awarded a two-year University of Georgia School of Law Cousins Public Interest Fellowship to explore heir property concerns in Georgia. Real estate attorney Crystal Chastain Baker was named to the Cousins Fellowship. The mission of the YPC Heir Property Project is threefold: a. To provide low income landowners of heir property with the necessary tools to protect and preserve their property; b. To engage service providers in Georgia to offer pro bono services to address and remedy problems associated with heir property; and c. To find sustainable solutions by increasing awareness of heir property and creating systemic level responses that may include future legislative relief. What is Heir Property? The problem of heir property came into public view in the aftermath of Hurricane Katrina. 20,000 Louisiana families residing in homes for generations discovered they were ineligible for federal disaster relief because they could not provide clear title to their property. Katrina brought to light a problem that abounds in other areas of the country, including Georgia. Heir property is the phrase used to describe real property passed to heirs without benefit of a will or probate. Georgia laws on descent and distribution related to intestacy can lead to property ownership being fractionalized among children or siblings, a problem that compounds over successive generations. The potential hardships of such ownership are many. It is difficult to rehabilitate, maintain, develop or sell such land. Absence of title undermines the ability to maximize the property as an asset to economic gain and security, such as collateral to obtain loans or use of the lands timber, mineral or agricultural resources. Property tax payment lapses and partition sales are other common issues. In Georgia, where many heir property owners are lower-income, rural African-Americans, loss of heir property often has social, cultural and economic impact on the surrounding community.
6 Making a Difference for Heir Property Clients Several concurrent avenues are underway to address and remedy the issues that confront heir property owners in Georgia. The YPC s extensive tax database research has confirmed that the problem of heir property in Georgia is both prevalent and complex. Through the pro bono assistance of attorneys and other professionals working with such property owners, their needs may be addressed and remedies sought. In addition, long-term, systemic solutions are under exploration. This Heir Property in Georgia Attorney Training Manual has been created to guide nonreal estate attorneys through an understanding of the laws of intestacy and risks associated with heir property. It provides tools to navigate pro bono attorneys through the process of perfecting title and includes an important section on professionalism and ethics that covers issues that heir property may generate. A series of scenarios featuring fictitious heir property owners illustrate key points, as well. This manual is presented as a public service to pro bono attorneys and is intended for educational purposes only. It is presented in loose-leaf format to accommodate future updates and addenda. The forms included are for illustrative purposes only; users of the manual must seek current forms from the appropriate court or agency, where applicable. A supplemental tool available for heir property clients and attorneys is the user friendly, information manual, Heir Property in Georgia, that covers such topics as property basics, steps to protect one s land, and the importance of a will. It is online at Future goals of the YPC address long-term aspects of the Heir Property project, including creating a sustainable, stand-alone 501 (c) 3 legal clinic that serves the needs of low-income owners of heir property and reforming Georgia s partition law. Bridging the gap until that time, however, are attorney volunteers generously providing professional services pro bono to help disadvantaged heir property owners to protect their property interests and to enhance their economic security. We extend our sincerest appreciation to our Heir Property Project volunteer practitioners and to the many legal volunteers who have helped to bring this Manual to fruition. Avril McKean Dieser Georgia Appleseed Young Professionals Council Heir Property Project Chair Crystal Chastain Baker UGA School of Law Cousins Public Interest Fellowship Georgia Appleseed Heir Property Project Manager
7 Acknowledgments The Heir Property in Georgia Attorney Training Manual was produced under the auspices of the Young Professionals Council (YPC) of the Georgia Appleseed Center for Law and Justice, in conjunction with the University of Georgia School of Law, Cousins Public Interest Fellowship on Heir Property. We would like to thank the following individuals and organizations for their participation and support of this project. Georgia Appleseed Heir Property Project Staff Crystal Chastain Baker, Esq. UGA School of Law Cousins Public Interest Fellow Georgia Appleseed Heir Property Project Manager Puja Vadodaria, Esq. Georgia Appleseed DLA Piper Fellow Georgia Appleseed Young Professionals Council (YPC) Jessica McKinney, Esq., YPC President Jason Carter, Esq., Immediate Past YPC President Avril McKean Dieser, Esq., YPC Heir Property Chair Sharon Hill, Esq., Georgia Appleseed, Executive Director Collaborative Partners UGA School of Law Public Interest Practicum Georgia Appleseed Center for Law and Justice Alabama Appleseed Financial Supporter Cousins Public Interest Fellowship Pro Bono Volunteers DLA Piper LLP (US) James JB Allen Ben Keiser Cara J. Nelson Gillian M. Deutch Jeremy Adam Kruger Roberta (Bert) A. Ritvo Mariah F. DiGrino Shawn Lanier Lawrence E. Uchill Thomas M. Grace Jarrod Matteson Sarah Whitmarsh Brian M. Gordon Shunta Vincent McBride Frank S. Alexander, Professor of Law, Emory University School of Law Scott Bryant, Holt Ney Zatcoff & Wasserman LLP Courtney Showell, Sr., Director of Advisor Services, PricewaterhouseCoopers, LLP Lauren Zeldin, Taylor English Duma LLP Cover Photograph Janice F. Dyer, Auburn University, Department of Agricultural Economics and Rural Sociology
8 CHAPTER 1 EFFECTIVE CLIENT REPRESENTATION A lawyer is a representative of clients, an officer of the legal system, and a citizen having special responsibility for the quality of justice. As a representative of clients, a lawyer serves as an advisor, advocate, negotiator, intermediary, and evaluator. As an advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As a negotiator, a lawyer seeks to produce advantageous results for the client while staying consistent with the requirements of honest dealing with others. As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. As an evaluator, a lawyer examines a client's legal affairs and reports about them to the client or to others. As a citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, and employ that knowledge to reform the law and to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that some people cannot afford adequate legal assistance and should, therefore, devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Section 1 Who is Your Client? In the context of heir property it is often difficult to identify the actual client. Is it the person living on the land, the brother in Chicago with no emotional interest in the property, or is it the sister who has been paying the taxes on the land? Now multiply this example by the number of heirs to the property. While Georgia Appleseed would like to focus on the client living on the land because preserving the home place is of primary importance to this project, this may not always be the case. Resolving the question of who is the client is a very important ethical obligation before service can begin. 1.1 Serving as an Intermediary Although you are trying to work out a solution for all landowners, you can only represent one side/one client. If you are in a situation where you are representing more than one individual, your role might transform into that of an intermediary rather than an advocate. Accordingly, in the Georgia Rules of Professional Conduct ( Rule ), the comments to Rule 2.2 state: A lawyer acts as intermediary under this Rule when the lawyer represents two or more parties with potentially conflicting interests. 1 Because confusion can arise as to the lawyer's role when each party is not separately represented, as their lawyer you must make this relationship clear and in writing. 1 GEORGIA RULES OF PROFESSIONAL CONDUCT Rule (2009). Chapter 1 Page 1
9 A lawyer acts as intermediary in seeking to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, arranging a property distribution in the settlement of an estate or mediating a dispute between clients. In these circumstances, the lawyer seeks to resolve potentially conflicting interests by developing and concentrating on the parties' mutual interests. The alternative can be that each party may have to obtain separate representation, with the possibility, in some situations, of incurring additional cost, complication or even litigation. Given these and other relevant factors, all the clients may prefer that the lawyer act as intermediary. In considering whether to act as an intermediary between clients, a lawyer should be mindful that if the intermediation fails, the result could be additional cost, embarrassment and recrimination. When the risk of failure is so great and intermediation is plainly impossible, a lawyer should decline to take that role. For example, a lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious negotiations. More generally, if the relationship between the parties has already assumed definite antagonism, the possibility that the clients' interests can be adjusted by intermediation ordinarily is not very good. The lawyer must reasonably believe that the matter can be resolved on terms compatible with the clients' best interests and that each client can make adequately informed decisions in the matter. Furthermore, the lawyer should find that little risk exists of materially prejudicing the interests of the clients if the contemplated resolution is unsuccessful and that the lawyer can undertake common representation impartially and without improper effect on the lawyer s other responsibilities to any of the clients. In acting as intermediary between clients, the lawyer is required to consult with the clients on the implications of doing so, and proceed only after obtaining consent based on such a consultation. The consultation should make clear that the lawyer's role is not that of partisanship, which is normally expected in other circumstances. This consultation should be detailed, in writing and signed by all parties. 1.2 Dealing with Unrepresented Parties Another situation in heir property cases likely will involve dealing with unrepresented family members. Rule 4.3 states in relevant part: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not: (a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; (b) give advice other than the advice to secure counsel. If you encounter a family member who is unrepresented and you determine that the situation is not one where you can serve as an intermediary, your duty is to advise this individual to secure counsel. You are not to provide any further advice. It is to your benefit to have a signed form stating that you do not represent this individual. Chapter 1 Page 2
10 Section 2 What is Your Client s Goal? Once you have established who the client is for the heir property matter, the next important step is to ensure that the client fully understands what you have agreed to do for him. Thus, you must provide, in writing, an agreement between your client and you that sets forth your duties and obligations to the client. 2.1 Explaining Possible Consequences Your responsibility to the client also includes explaining all of the possible outcomes associated with clearing title, including its effect in the client s legal ability to remain on the property, which is of utmost importance in the heir property context. Rule 1.4 states: A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, shall keep the client reasonably informed about the status of matters and shall promptly comply with reasonable requests for information. Almost always clearing title will have the effect of making the client more vulnerable to competing interests in the property. Because of this fact, it is your duty to make sure the client is fully educated in realizing the benefits and consequences of clear title so that the client can make an informed decision after your representation with regards to the property. Rule 2.1 states: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. 2.2 Providing Honest Advice A client is entitled to straightforward advice expressing the lawyer's honest assessment, therefore, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. Remember that the different and competing interests can create a sensitive ethical situation. For example, a common situation that will occur is when a client has been maintaining the property and paying taxes. This client may think that his efforts equate to a greater ownership interest than he has at law; however, even though this may be unpleasant information, you must explain to the client that his efforts do not change his actual interest in the property based on the law. Additionally, conflicts will occur when you are faced with families divided on what the land should be used for in the future. For example, while one part of the family might want to get immediate profit from the sale of the property, the other part of the family might want to remain in a home on that property. Part of your duty is to inform your client of all possible options that become available when title is clear. This will include selling the property, holding the property in a family corporation, rehabilitating the property, dividing the property among owners. Your client must be made aware of all possible results and consequences of clearing title through legal advice and education. While marketable title is generally the goal, this may not be the best solution based on the facts of the case. Ultimately, it is the decision of the client to decide whether to pursue this Chapter 1 Page 3
11 objective. Rule 1.2 states: Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Thus, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense and concern for third persons who might be adversely affected. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. The terms upon which representation is undertaken may exclude specific objectives or means. This agreement should be in writing and in accordance with the rules of professional conduct. Section 3 Examples of Ethical Situations 3.1 Representing Clients with Conflicting Interests Joseph Builder and his cousin, Rita Teacher, have inherited a property interest in a oneacre lot, in the city of Gordon, which their family has owned for generations. The property is valued at $50,000. Based on intestacy laws, Joseph, who recently lost his job, has a 55% interest in the land and Rita has a 40% interest in the land. Rita is able to buy out the remaining coowners of their 5% interest. When Rita and Joseph come to you, they want to pursue clear title as a joint effort. While Georgia Appleseed prefers to focus on preserving the land for the client living on the land, in this instance you might be asked to represent both parties. In this situation, before beginning the process for clear title, it is your duty to first determine the goals of each individual. Joseph s goal might be to consolidate marketable title in their names so that he can obtain a mortgage to build a new home and live on the family land. Rita s goal might be to sell her interest in the property for a greater profit than a property with clouded title is worth. If the parties have conflicting interests, then you must inform them clearly that you will act as an intermediary to mediate the conflicting goals between the clients, and not as an advocate for either side. Only after both parties provide written consent, should you proceed with the representation. If they do not consent, you should not represent both parties. If you proceed to represent just Joseph in this matter, not only must you inform him of the risks of losing his property, you must also ensure that Rita fully acknowledges that you do not represent her or her interests in this matter and that to obtain legal advice she should secure separate legal counsel. Finally, if they do consent to joint representation, one resolution might be to tell the clients to raise an in-kind partition so that Joseph can build a home and live on his part of the land and Rita can sell her portion to a willing buyer. 3.2 Providing all the Outcomes Before Pursuing a Case Betty Farmer, from Darien City Georgia, has lived on the acre of land that has been in her family since her great-grandfather, John Farmer. The property is valued at $10,000. Based on Georgia s intestacy laws, Betty only owns 95% of the interest in the property that she had lived on for her entire life, paid out property taxes for the past twenty years, and performed all Chapter 1 Page 4
12 required maintenance for the upkeep of the house. She wants to obtain clear title in her name solely so that she can leave the home to her child in her will. Many times co-owners that do not live on the land do not have any ties to the property or the area. These heirs might think they are going to get a lot of money if they force a sale because they are unaware that with the court costs, lawyer fees, and low property values, they will actually end up with very little, if anything. However, because they think the land is worth more than it actually is worth, they do not want to sign over their shares to those who reside on it. In this situation, it might be advisable to send a letter to all of the identified heirs, with a request to voluntarily transfer their interest in the land to Betty by executing a quitclaim deed. By informing the owners of the actual value of the land, the costs to enforce a partition sale, and the actual value they would receive after reimbursing Betty for tax payments and property upkeep, they might be willing to hand over their interest. This method is just one of many ways peaceful negotiations can clear and consolidate title. However, it is your duty to inform Betty that a small risk of losing her home exists. If a newly discovered co-owner forces a partition sale, and she does not have the assets to buy them out, a third party has the opportunity to dispossess her of her home in the partition sale. Thus, even though the chances of Betty obtaining consolidated clear title in her name are high, you must make sure she is educated of all of the outcomes before taking action. 3.3 Providing Honest Advice to Clients in Unfavorable Situations Joey Waiter lives on a 1/3-acre coastal property that he co-owns with his sister, Sidney Mechanic, and many other heirs. Joey and Sidney each own 35% of the land that is worth $100,000. Two years ago Joey and Sidney had a disagreement about who inherited their mother s china. Since that argument, neither side has been able to communicate amicably. Although Joey asks you to represent him in obtaining clear title to the property so that he can continue to live on the land and keep the land in the family, it is your duty to inform him that obtaining clear and marketable title will not solve his problems. First, although he owns a significant portion of the land, with clear title he is still vulnerable to losing the land if a minority interest holder sells their interest to a buyer with deep pockets. After the buyer has even a nominal interest in the land, the buyer can demand a partition sale to obtain rights to the entire land. Furthermore, even if Joey was able to obtain clear title and buy out the minority interest holders shares of the land, because of their precarious relationship, his sister, Sidney, probably will not acquiesce to his demands. While Joey has the ultimate authority whether to pursue clear title, it is your duty to give the client candid and straightforward advice, even if it calls for solutions that the client may not want to explore. The Intake Form (Exhibit 1) is a tool for your use in assisting your new client with heir property issues. The Risk Disclosure Letter (Exhibit 2) should be provided to your client to make them aware of the potential risks of seeking clear title. Chapter 1 Page 5
13 EXHIBIT 1: HEIR PROPERTY INTAKE FORM Instructions. In order to preserve attorney-client privileged information, an attorney or a volunteer working under the supervision of an attorney should complete this form. PLEASE DO NOT GIVE THIS FORM TO THE INDIVIDUAL SEEKING ASSISTANCE TO FILL OUT. Part I of this form is intended to obtain information necessary to allow local organizations to determine a potential client s eligibility. It is also intended to allow pro bono law firms to perform conflict searches to determine whether they may represent a potential client. The remainder of this form (Parts II through IV) is intended to guide the person doing the intake through a narrative process that is designed to arrive at the answers to the numbered questions. Below each numbered question is a series of leading questions designed to aid the person doing the intake in leading a conversation with the individual seeking assistance. Do not feel limited to the suggested questions. To the greatest extent possible, please take this approach with the individuals with whom you are working. Please take as many relevant notes possible and keep all notes on separate pages. This information will be helpful to the attorneys performing the work for this individual. THE INFORMATION CONTAINED IN THIS FORM IS CONFIDENTIAL AND MAY BE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE.
14 PART I. CLIENT INFORMATION PLEASE PRINT: Applicant s Name: Soc. Sec.#: Address: County: City: State: Zip: Home Telephone: Work Telephone: Cellular Telephone: Other Telephone: (Relative Not Living with You) Address: Occupation: Employed By: Spouse: Employed By: DATE OF BIRTH: / / AGE: SEX: Male Female RACE/NATIONAL ORIGIN: Black White Hispanic Native American Asian/Pacific Islander MARITAL STATUS: Single Married Divorced Separated Widowed CITIZEN: Yes No ELIGIBLE ALIEN: Yes No MIGRANT: Yes No Is this your first time talking with an attorney about this matter? Yes No Adverse Party: Adverse Party s Address: HOUSEHOLD RESIDENTS: Name Age Relationship Employer
15 INCOME: Weekly Monthly Bi-monthly Annually Source Applicant Spouse Other Wages $ $ $ Social Security $ $ $ SSI $ $ $ TANF $ $ $ Pension $ $ $ Unemployment $ $ $ Worker s Compensation $ $ $ Child Support Alimony $ $ $ Other: $ $ $ TOTAL AMOUNT $ $ $ ASSET: Source Value Amount Owed Monthly Payment Cash Saving/Checking Home/Land Vehicles Other EXPENSES: Source Monthly Payment Source Monthly Payment Employment Related Child Support Medical / Nursing Expenses Alimony Age / Disability Expenses Transportation Dependent Care Other Paying Current Taxes Property Taxes
16 PART II. PROPERTY INFORMATION GENERAL PROPERTY INFORMATION 1. Please attach a copy of a document stating the legal description of the property. 2. Address of the property. TAXES 3. Name and contact information of person listed on tax rolls as owner. Have you paid the taxes on the property? Who has paid the taxes on the property? For how long? Do you have receipts or other documents related to payment of taxes? Please provide a copy of your existing tax bill. 4. Have the property taxes been paid in a timely manner? Have you been paying the property taxes regularly? Have you received any communications/letters from the county tax collector? 5. Individual s relationship to person listed on tax rolls as owner? 6. Names of everyone living on or using the property (including a description of each person s use and relationship (familial or otherwise) to individual). Is anyone else living at the property? What is that person s relationship to you? Do they live there, receive mail there? Do they work/farm the property? TITLE / ESTATE ISSUES 7. Whose name is the title to the property now in? What is the legal status of the owner(s) (single, married, partnership, corporation, joint tenants, tenants in common, heirs property) How and when was the property acquired? Do you know if the original owner ever transferred the property to anyone else? Have you seen a deed for the property? If so, whose name is on it as the grantee? Who lives on the property? 8. Individual s relationship to that person? What is your relationship to the last owner of the property? 9. If the property is part of an estate of a deceased parent or other relative: a. Was there a will? b. Was an estate opened and/or adjudicated and closed by the Chancery Court? Did the last owner leave a will? Was the will officially handled in court? Did the court order that the person s property pass to certain people? 10. Names of all people who have or may have an interest in the property (to the extent known). A family tree (including information like marriages, divorces, dates of birth/death, contact information, relationship to record title holder) would be of great use, if it is possible to collect that information from the individual. Please get as much family tree-type information as the individual can offer. Please begin with record titleholder and obtain information for
17 each person in the family tree. Don t forget to consider deceased heirs, divorces, children from different marriages, all spouses or children of the deceased, including grandchildren of any deceased children (these are all of the co-owners if there has been no settlement of the deceased owner s estate), etc. Can you tell me about [the last owner s] children? Was that person married at the time? Was that person ever divorced? Did those children have any children? Who is still alive? How many generations are involved in ownership of the property? How many owners are accounted for (i.e., can be located) and how many are unaccounted for (i.e., can t be located)? 11. Describe the state of relations among applying co-owner (i.e., the individual) and other coowners. Are you still in touch with any/all of these relatives? Are there any major divisions in the family? Do you see any of these co-owners regularly? When was the last time you saw? Are you and on good terms? Did the scheme of distribution of property in the will cause any bad feelings? Does anyone currently claim to want to occupy/use the property? Have you talked about these issues with before? Who has paid property expenses over the last years (e.g., improvements, maintenance)? Have there been any major improvements made to the property over the last years? If so, who paid for them? How much did they cost? Has there been any major maintenance cost incurred with respect to the property over the last years? If so, who paid for them? How much did they cost? 12. Is the property the registered homestead of any individual? Does anyone get a tax break on the property because it is their homestead? Are there any other tax breaks that benefit the property (i.e., over 65)? 13. Has the property been leased out or otherwise used by non-owners? If so, please describe the uses, who the landlord was, and who collected payments on these arrangements? Does anyone other than relatives use the property? Has the property ever been leased out to someone other than relatives? Have you ever taken money to allow someone else to use the property? 14. Was the property purchased in the last 10 years? If so, please attach copies of all sale documents. How long has the property been in the family? How did it come into the family? LEGAL PROCESS 15. Was property ever legally divided up, or subjected to any legal process? 16. Do you know whether anyone with legal interest to land has a default on a payment obligation that could implicate the land?
18 DISCUSSIONS AMONG FAMILY MEMBERS 17. To your knowledge, has any family member sold or tried to sell outside family? 18. Has any family member asked other family members to agree to sale or mortgage of all/part of land? 19. Any disagreements among family as to how to use land or profits/taxes? 20. Any disagreements among family as to who is legitimate heir to land? 21. Do any liens encumber the property (e.g., mortgages, tax liens, construction liens, etc.)? OUTSIDE OWNERS/USERS OF PROPERTY 22. Has any outsider approached family members about buying, or threatened legal action? 23. Is anyone outside the family using part of the land, and if so, a) is it without permission of any/all family members, and b) does outsider pay for use of land (and if so, who is collecting money)? 24. Any boundary disputes? PROPERTY CHARACTERISTICS 25. What is the property size? Less than 10 acres acres acres acres Over 1,000 acres 26. Does the property have any special historical, cultural or community significance? 27. Briefly describe your personal connection to this land as well as your family s connection to this land. 28. Are there improvements on the property? If so, what are they? 29. Does the property have any special African American cultural significance? History of Black ownership or displacement: Historic structures: Cultural sites: Designated historic district: Local historic landmark: 30. Is there water on this land? If so, what kind? 31. What type of natural habitat is on the land plant and/or animal? 32. Does this land have an agricultural use?. If so what kind? Contains prime or productive agricultural soil Has favorable micro-climate, specify Buffers productive agricultural land 33. Does this land have a forest? If so what kind? Working Forest Subsidies/programs Technical Assistance Management Plan Timber Forestry Solis Question
19 34. Does this land generate income?. If so, what type? Working Farm Working forest Supportive Infrastructure in the Community Business Plan On Farm Infrastructure Ag/Forest product processing, marketing or sale Subsidies/Program Technical Assistance Home site/family Tourism Timber 35. Is the land used currently or in the future do you plan to use the land for any of the following recreational activities? Walking or hiking ATV/Motorcycle/Snowmobile riding Camping Wildlife viewing Lawful hunting or fishing Horseback riding Non-motorized biking Describe: Large group tours Commercial recreation Environmental or other education Public access Other(s): 36. Is the land used currently or in the future do you plan to use the land in any of the following ways? Wetland enhancement or pond creation Fish or wildlife habitat enhancement Topographical grading Road/trail building Restoration of streams or buffers Other(s) Describe: Tree or vegetation clearing/planting Landing pad or airstrip construction Home or building construction Public access
20 PART III. CLIENT S GOALS 37. What is the client s immediate goal for the property? Have title to the property consolidated into one person s name Obtain MDA grant or other loan Obtain insurable/marketable title What is the total percentage interest of family members who agree with the client on this goal? Other (please explain) 38. Does the client s goal benefit the community? List the benefits of the idea for the owners and the community? What are the primary obstacles to the idea? 39. What are the critical factors necessary for the success of the idea? How does the client plan to use the property in the future? Sell Pass on to children Farming Livestock grazing or boarding Working forest or timber harvesting Recreation (See next) Home business Commercial/Industrial use Additional home(s)/structure(s) Other(s): 40. What does the client see as the primary value of the property? Place to visit Inheritance for children/grandchildren Place to live (full time / part time) Natural landscape to be preserved Financial asset/investment Other(s) 41. Does the client wish to sell or donate a conservation easement? If so, why is the client interested in seeing the property conserved? Maintain open space Protect special natural feature or wildlife Estate planning Avoid family conflicts over future use Tax credit/deduction (for donation only) Other(s) 42. Has the client discussed conservation options with any other organizations or agencies? If so, who? 43. In what ways, if any, does the client plan to remain involved with the land? CONSERVATION VALUES 44. How has the client witnessed the natural landscape change during their ownership? 45. Wildlife or botanical species sightings (either personal or second-hand): 46. Are there any cultural or historic features on the property? 47. Is the property visible from any public road or trail? 48. Does the client see any obstacles to conservation of the land?