Hurdles to Heirship
Word-of-mouth inheritance locks some siblings out of family homes

Ariella Cohen
New Orleans City Business

Darlene Leavell owned the house she lived in. The mint-green double shotgun had been her mother’s, the proud payoff of a life’s work. When Leavall’s mother died in 2001, leaving the city bus driver the Desire property, she made sure to maintain its small green lawn and check the gutters.

By the time Hurricane Katrina hit, her two older siblings who shared claim to it also had passed, leaving Leavell with clear rights to the waterlogged property — she thought.

Leavell is one of an estimated 20,000 New Orleans residents who discovered after Katrina that a lack of written title to her home could prevent her from receiving grants to rebuild.

Heirship property is the legal term for land handed down orally without a title transfer and owned by multiple heirs. In the United States, it has been perceived as a rural phenomenon common among poor farmers who did not keep written wills. Katrina revealed the custom of oral property transfer crosses urban boundaries and remains common in New Orleans’ low-income communities.

Under Louisiana law, gaining succession rights to an heirship property requires proving ownership with the correct paperwork or gaining the power of attorney from all other heirs. If a title goes back two generations, that means all heirs must be found and their blessings given, an endeavor that often means tracking people who haven’t been in touch for decades.

New Orleans Legal Assistance Clinic attorney Paul Tuttle has helped thousands of people obtain the legal documentation needed to gain title to their family homes. Clinic director Mark Moreau estimates there are thousands more still fighting to get the paperwork they need to be eligible for rebuilding.

“About half the families we see have very serious problems completing successions,” Moreau said. “It’s too difficult and too expensive to get done. If a family has owned the property for more than one generation, the heirs are out of touch, people have been lost track of. Some heirs are incompetent. Some may be dead and yet there is no proof.”

Leavell was lucky. Because neither of her siblings are alive and her mother had no other heirs, she was able to pay a few thousands dollars in legal fees and obtain the title to her house with a relatively simple judicial proceeding.

“I was given a chance to redeem the house,” Leavell said, “but it took me months and a lot of money to redeem a house my mother and father worked all their lives for.”

For many others, however, securing the title has proven to be an obstacle to rebuilding. Ironically, the longer a home is owned by a particular family without changes to the title, the tougher it is for a particular family member to keep it.

Now there is a movement to change the laws governing how titles are passed to make it easier and less expensive for people to prove succession. Leading the drive is Adams and Reese real estate lawyer Malcolm A. Meyer.

Meyer said the roughly 20,000 New Orleanians he estimates lack title to their homes never obtained the legal documentation for simple and structural reasons: the process cost money and did not appear to be necessary.

“People would simply pay taxes in their mother or grandfather’s name,” Meyer said. “There was no immediate need to change it and doing so would cost money and require going to an attorney.”

He contrasts the heirship transfer process to the one required for life insurance policies, where a simple signature can pass $1 million in benefits to a spouse or one child. A succession transfer can cost up to $5,000, Meyer said.

Though The Road Home waived some requirements to allow people with title issues to rebuild, Meyer said a permanent change to the succession process is the only way to eradicate problems.

Working with nonprofit Louisiana Appleseed and Sen. Edwin Murray, D-New Orleans, Meyer is writing legislation that addresses process requirements and cost in hopes of encouraging more people to obtain title to their homes.

The proposal change would allow Louisiana residents to file affidavits in place of going to court and bring the state laws in line with those in Arkansas, Mississippi and Texas, where heirship property is also common. Other changes would reduce filing fees and eliminate the requirement for all heirs to be contacted.

“The complexity of our laws have cut hundreds of millions of dollars from going to the state,” Meyer said. “Because people can’t obtain title, they are walking away from grants. When they walk away from the money, it isn’t only the owners who are missing out. It is the carpenters who would have gotten the work, the city who would have gotten more tax revenue and the neighbors because they will still have a junky house sitting next door.”