By Stephen Smoot
Several years ago, a natural gas company had an issue typical in West Virginia but rarely discussed. They wished to construct a well in Barbour County to tap into a pool of natural gas.
Company officials found that the ownership of mineral rights had originally been held by a coal company founded by an Italian immigrant just after World War I.
Ownership of mineral rights had unknowingly passed through two generations. By the time the gas company entertained interest, it had 12 heirs to identify, track down, and negotiate with.
Groups of heirs were based in West Virginia, Ohio, and Michigan. Some in the family wished to sign quickly, others opted to hold out for a better deal. It took two years to reach accommodation with all the heirs, but that did happen and each receives a small monthly royalty disbursement from the well.
This case illustrates one type of example typical of a larger issue. In many cases, the land itself has passed from single household ownership into the hands of multiple heirs over generations. In some cases, this happens intentionally and through legally registered wills. Families get the benefit of retaining use of the land while (sometimes) enjoying the benefit of dividing the property tax burden divided into more hands. While the law requires one person to stand in to represent the heirs, ideally co-owners give their shares to that person to pay in full.
All too often, however, inheritance and ownership get muddied as generations die off intestate, legal rights fall in dispute, and heirs are less amicable in dealing with each other than the family example from above.
In centuries past going back to colonial times and British and English practice, the law had a simple solution, primogeniture. When a property owner died, unless specified otherwise, property and all the rights connected to it devolved to the eldest son. The law then reflected the interest in keeping large agricultural estates together for both centralized production and the preservation of family wealth over generations.
Francine Miller from Farmland Access published a guide to the law related to this issue in 2024. She opens with “Heirs property (sometimes known as family land) is property that has been transferred to multiple family members by inheritance, usually without a will.” This also happens if the will specifically leaves the land to the children or others in a will, but said will does not specify which heirs get what section of land. Families sometimes intentionally do this because the heirs agree to take on the responsibilities of ownership in common. Sometimes they follow this path to avoid the headache of tough conversations and choices.
“When heirs property is created,” wrote Miller “the heirs own all the property together (in legal terms, they own the land as tenants in common.)” They “each own an interest in the undivided land rather than each heir owning an individual lot or piece of land.”
Worse, if the previous owner died intestate the land and/or mineral rights will likely remain in the name of the deceased and create an additional legal hurdle in untangling ownership, if that course becomes necessary. In such a state, Miller warns “it also leaves the property vulnerable to being acquired by real estate developers and unscrupulous actors.”
The most extreme case of this in US history came when the State of Georgia wished to clear the Cherokee Nation from their historic lands because gold was located there. Cherokee land was held in common with a death penalty threatened against any of their nation who sold rights to that land to outsiders. A rogue chief signed over the land and, despite a United States Supreme Court decision to the contrary as well as a treaty signed by President John Adams and approved by Congress, the Cherokee Nation (outside of mountain dwelling holdouts) was moved from Appalachia to Oklahoma. That chief did, in fact, suffer that penalty imposed by Cherokee law, but the Nation never recovered their rights.
Land can continue in this state for years, decades, even generations so long as taxes remain paid on the property. When, however, the time comes to sell the land or some owners wish to obtain loan or grant assistance from agricultural development, ownership of the property must be verified. Miller suggests as a first step creating a family tree. “The goal is to gather information about anyone who might have held an interest in the land at any point in time” and “all the heirs, all of whom might be entitled to an interest in the land.”
West Virginia has state-specific laws about inheritance without a will, known legally as dying “intestate.” Those changed in 1993. Constitutionally, the law passed in 1993 cannot apply to cases before that point. The law addresses different types of family units and how each may receive inherited land. A spouse without children, barring a will to the contrary, receives 100 percent.
The law establishes guidelines for families that have children from both the current spouse and also a former partner, spouse and children not descended from the spouse, children or grandchildren, but no spouse, parents but no spouse or children, siblings, but no parents, spouse or children, or children born outside of marriage.
Trouble can come when one or more heirs wishes to obtain help to develop, but more so when heirs cannot agree on a common direction. This occurs when the land is owned by heirs who share an interest in the whole, as opposed to directly owning specific parcels.
West Virginia law currently holds, as Miller explains, that “a joint owner of land may bring a lawsuit against their co-tenants to divide or sell the property they co-own.” Those bringing the suit must show that “the property cannot be conveniently divided” by the heirs themselves, that “one or more parties’ interests will be advanced by the sale”, and “the interests of other parties will not be inhibited. Courts can take into account almost any factor from economic gain to “sentimental interest and family heritage.”
Sales take place via auction rather than an “open market sale.” Also, courts do not face the requirement to have the property assessed for fair market value before sale. The West Virginia State Legislature has taken up the issue of requiring market value assessments and open market sales rather than auctions, but has not yet passed legislation that would protect owner rights via these reforms.
The Farm Bureau has taken the lead in encouraging families with agricultural land to engage in “succession planning.” Its Financial Services web page offers “a complete guide” that encompasses all aspects, including legal and financial issues as well as the need for transparent communication between owners and intended heirs.
It recommends that “the first step in farm estate planning or farm inheritance planning is enlisting a team of trusted professionals, including your insurance agent.” The Farm Bureau urges to “start the succession planning process as soon as possible, to ensure a plan is in place before you’re no longer able to run the farm.”
Owners need to establish their own priorities first that reflect their plans, vision, and commitments. Also, “don’t feel pressures to release” assets or agreements that provide revenue streams to a farm besides agriculture, including cell towers, natural gas infrastructure, billboards, and more. “Make sure that your well-being is a priority.”
Farmers especially need plain communication with heirs as to whether they will continue to operate a farm. Many farm families have moved their productive assets from traditional family ownership into more legally tidy limited liability corporations, known as LLCs.
Advice also is provided to owners eyeing a single heir or multiple heirs to land and/or farm operations.
Federal legislation in 2018 gave the United States Department of Agriculture the ability to help farms on heirs property. The USDA website states that “a farm number is required to be eligible for many different USDA programs, including lending, disaster relief programs, and participation in county committees.”
USDA assistance can also take the form of the Heirs Property Relending Program, which “will provide loan funds to eligible lenders to resolve ownership and succession on farmland with multiple owners. Advice also comes from a USDA created “toolkit” and property training videos on YouTube.
The USDA also offers on its website “Guidance for Heirs Property Operators Participating in Farm Service Agency Programs.”
