The Uniform Partition of Heirs Property Act: A Solution in Search of a Problem

The Florida Bar Journal recently talked about the Uniform Partition of Heirs Property Act (UPHPA), saying it’s better for heirs’ rights. But Florida’s current probate law already protects those rights. The UPHPA may cause more problems than it solves. Florida law allows property to be divided and sold fairly. So, the UPHPA may not be best for Florida. The Florida Probate Code provides protections for both heirs who inherit through a will and those who inherit without a will. There are rules in place to make sure that the personal representative of the estate follows the law and takes care of the beneficiaries. The Florida Constitution also protects family members who inherit the primary home of the deceased owner. This means the home is exempt from the deceased owner’s creditors and cannot be sold to pay for estate expenses. This ensures that the heirs inherit the property and it cannot be lost to creditors. If the heirs can’t agree on what to do with the property, they would have to go to court to figure it out. The best options for heirs inheriting Florida property are preventive and educational measures, not new laws. The Florida Bar and the Real Property, Probate and Trust Law Section have programs to help low-income residents clear title to their property and get access to community development funds. Funding for legal aid services is important to provide education and prevent problems with property inheritance. Understanding the partition of property process also shows that new laws may not be the best solution. In Florida, the law about dividing up property (called partition) is well established. It covers real estate, personal property, and even mineral rights. Certain people can ask for partition, like joint owners or people with a beneficial interest in a trust, but others can’t, like someone who will get the property in the future. Even if there are disputes about who owns the property, partition can still happen. In Florida, the court usually makes the decisions about who gets what, instead of using commissioners. This is because using commissioners can make the process take longer and cost more money. Partition in kind, where real estate is divided among co-owners, is not used often because it’s hard to divide the land equally. The resulting parcels may not be of the same quality and value, so it’s difficult to make it fair for everyone. Plus, if the owners couldn’t agree in the first place, it’s hard for them to live next to each other after the division. This is why partitions in kind are rare. The act doesn’t take into account practical issues and ends up creating more costs and delays. For example, it says the court has to order an appraisal unless the parties agree on the value of the property. But if the goal is to sell the property, there’s no need for an appraisal because the value would be what a buyer is willing to pay. And if the property is not to be sold, the act says the court can decide the value itself, which doesn’t really make sense. Also, the act has a complicated process for one co-owner to buy out the others, when the court could handle it more simply. Overall, the act makes things more complicated than they need to be. After a certain period of time, if one person wants to buy out everyone else’s share of a property, they have to let everyone know. If more than one person wants to buy, the court will decide how to split it up based on how much of the property each person already owns. If no one wants to buy, the court will figure out what to do with the property. After the court makes a decision, the people who want to buy have to pay the money they owe by a certain date. This law is complicated and could lead to more legal problems and costs. It also might not help people of lower income keep their property. In Florida, it’s better for a judge to decide what to do with a property based on the specific situation. The act has a problem because it doesn’t fit well with how things are usually done in Florida. It wants judges to be in charge of the process, but in Florida, the parties usually lead the way. Plus, the act asks for things that might be really hard for busy judges to do, like sending out notices and holding hearings quickly. And it also tells the court how to sell the property, which could limit the judge’s ability to find the best solution for everyone involved. In Florida, there are already laws in place to handle dividing up inherited property. A new law, the Uniform Partition of Heirs Property Act, might not be necessary and could have some unintended negative effects. Instead of creating new laws, it would be better to focus on educating and helping people who inherit property in Florida. There are already programs and lawyers who volunteer to help with these issues. So, the new law might not be needed and could cause more problems than it solves. The Public Land Surveying System uses a grid to divide land into sections of 640 acres each. Manuel Farach, a lawyer in Ft. Lauderdale, practices real estate and business law. He is involved in the Real Property, Probate and Trust Law Section. This information is provided on behalf of that section.

Source: https://www.floridabar.org/the-florida-bar-journal/the-uniform-partition-of-heirs-property-act-a-solution-in-search-of-a-problem/