By Karla Carter, Esq.
I was sitting in my Wills & Trusts class during my second year of law school when I learned something very important: my family needed an estate plan. I was a college-educated Black woman from a rural maritime community who was pursuing a professional degree in law and, up until that point, I had no idea that “estate planning” applied to my family and the parcel of land my dad owned in the Northern Neck region of Virginia. We came from humble beginnings. My dad made his living on the water as a commercial fisherman and cook. While we lived modestly, (my dad was frugal and a good steward of his modest income), I never felt like we were poor by any stretch of the imagination. Still, I didn’t think we were the kind of people who had an “estate.”
Over the years, I had seen movies like “Brewster’s Millions” and “Rainman” which dealt with large inheritances, and I always associated wills and “estates” with a lot of money, mansions, and fine jewelry. I never thought that my childhood home and the land upon which it sat was also an estate that needed protection through proper estate planning.
Sadly, my story is not unique among the Black, Indigenous, and other communities of color where estate planning is not a mainstream practice. Many families in these communities hold their land through an unstable form of land ownership known as heirs property where property passes from generation to generation without the benefit of a will. Heirs property is especially prevalent among low-wealth communities of Blacks who own land in the rural south, Whites in the Central Appalachian region of the country, Hispanics in the colonias communities of southwestern United States, and Native American groups.
While all populations, regardless of race, are impacted by heirs property, Black families have lost a disproportionate amount of land to heirs property issues. According to the USDA, heirs property is the leading cause of Black land loss in America, with millions of acres lost to this unstable form of ownership, which has translated into billions of dollars of lost generational wealth. To understand this present problem requires one to first understand the historical and cultural framework that gave rise to this problem in the Black community.
DECADES OF SORROW
After Emancipation, freed Black people acquired millions of acres of land, owning roughly 16-19 million acres by 1910. Often denied access to White-owned establishments to obtain legal services and financing, Black people began developing their own economic structure as a means of building wealth within the Black community. However, as Blacks began to establish thriving towns, to register to vote, to start businesses, and to engage in politics, opposition by Whites to a rise in Black prominence led to public lynchings and other atrocities that contributed to the Great Migration where millions of Blacks fled the South because of the violence and brutality they suffered in the South and the promise of opportunities for financial independence in the North. Here was a population of Americans whose status had shifted from one of being property to actually owning property themselves, but because they lacked the external resources and support they needed to protect their property in the Jim Crow South, what could have been a triumphant story quickly became one of sadness, desperation, and loss. Many decades of sorrow form the backdrop of Black land loss in America and between 1910 and the present day, Black land ownership has dwindled to roughly 2.5 million acres.
LAWYERS & LAND LOSS IN LOW-WEALTH COMMUNTIES
A common theme exists across all low-wealth communities where heirs property is prevalent, regardless of race: the lack of access to trusted, quality legal services. A lack of trust in government and the legal system by people in low-wealth communities has its roots in the past unethical practices of government officials, lawyers and judges who preyed on this vulnerable population to defraud them of their land. The partition process was a common vehicle for abuse and decades of legal chicanery and outright deception by government officials has resulted in a deep mistrust of the government and the legal system by people in low-wealth communities. This scenario played out countless times: Because heirs property owners hold the property as tenants in common, any one owner of the property has standing to file a partition suit in court. Often, a developer would purchase the interest of one of the heirs, which gave the developer standing to bring a partition suit in court. Rather than ordering a division of the property, the courts regularly granted the requests of the developers, thus forcing families with strong connections and emotional attachments to the land to be separated from the family property. Land that had been in families for generations was lost forever. Often the land was sold way below market value, resulting in the heirs receiving little to no proceeds from the forced sale. These unjust outcomes were the rule, not the exception, resulting in billions of dollars of lost family wealth, and not just in the Black community. Native Hawaiians have been impacted by forced partition sales and Hispanics in New Mexico lost more than 1.6 million acres of land in the late 19th and early 20th centuries because of forced partition sales.
As a profession, our hands are unclean. However, there is a better way forward and our profession has taken meaningful steps to correct these past wrongs.
PARTITION REFORM IN THE UNITED STATES
In Virginia and a growing number of states, partition reform is on the rise with the expectation that we will see a decline in these types of forced sales of family land. In 2020, Virginia adopted provisions of the Uniform Partition of Heirs Property Act (UPHPA), which was enacted for the purpose of helping families preserve their family land and to protect their land from the vulnerabilities inherent in heirs property. The law requires the court to consider partition in kind as well as the family’s emotional attachment to the property. If a sale does occur, the court is required to appoint an outside appraiser to ensure that the family receives a commercially reasonable share of the proceeds. Virginia’s approach to adopting the UPHPA was to incorporate the UPHPA provisions into its existing partition procedures set forth in Virginia Code §§8.01-81, et seq.
Lawyers and legal scholars were among the stakeholders instrumental in bringing about partition reform in this country, but the real work begins with lawyers creating opportunities for low-wealth communities to have access to trusted, quality legal services. Providing quality legal services requires not only professional competence, but also cultural competence.
CULTURAL COMPETENCE IN THE LEGAL PROFESSION
Rule 1.1 of Virginia’s Rules of Professional Conduct requires lawyers to provide “competent representation” which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
As lawyers, we are called upon to treat our clients with respect and courtesy, something that can only be accomplished if we pursue cultural competency as a way of better serving our clients and the larger community. Being culturally competent is just as important as being professionally competent. We can’t serve our clients effectively without being in tune with the culture, experiences, belief systems, and values of our client. In providing services to the low-wealth communities that need and deserve our service, we must pursue cultural competence in our service to this population. For example, to help a Black family stablilize their land ownership, a lawyer benefits from a knowledge and understanding of the history that led to the widespread lack of estate planning in the Black community. Your background may be vastly different than the client you are serving, but to pursue cultural competence to better serve our community carries tremendous value. The need for legal services in low-wealth communities is vast and matters involving land are some of the most expensive to resolve.
PREPARING LAWYERS TO ANSWER THE CALL
There is likely an attorney reading this article who has a desire to serve in this area, but who lacks the professional training and experience in the areas of real estate, land use, and estate planning needed to serve this population. Fortunately, programming is being developed to launch in 2023 to help willing lawyers who have a desire to increase both their cultural competence and their professional knowledge to equip them to serve this population.
The sad history of land loss in low-wealth communities in this country is one that has persisted long enough, and a new narrative is being written, one in which lawyers and judges seek justice for all and where low-wealth communities are able to preserve their family legacies through estate planning and other needed legal services. To close the wealth gap in America, attorneys are needed to stand in the gap by providing trusted, quality legal services to the low-wealth communities that need it most. Lawyers dedicated to the pursuit of cultural competence and professionalism in serving low-wealth communities are the key to closing the wealth gap in America and helping families create generational legacies. To those lawyers willing to join me on this mission, I bid you Godspeed.
Karla D. Carter, Senior Counsel, Dominion Energy
Karla Carter is a frequent writer and speaker on issues involving heirs property and the need for access to legal services in low-wealth communities. For questions about future training opportunities as described in the article, contact Karla Carter by email at: firstname.lastname@example.org