Real estate owners have a duty to make sure their property is maintained and their annual taxes paid. If these obligations are not met for a period of time and if the owner cannot be located or is deceased, the real estate will likely be escheated.
Escheating is the process by which the ownership of private property is transferred to the state or local government. Escheated property is considered abandoned property.
Identifying escheat real estate
There are many different ways in which vacant and abandoned real estate can become escheated. Each state, city, or county has different processes to establish that a property is indeed abandoned and to take ownership. In general though the local tax assessor will identify possible abandoned houses and real estate. He or she will notify the tax commissioner or commissioner of revenue and the attorney general. They will take the appropriate steps.
However, the government system is not the only entity that can petition the court to escheat abandoned property. An individual can petition and ask for a writ of possession. The petition must contain a description of the real estate, the name of the owner who died, the name of others who are claiming ownership (if known) and all facts supporting the legal basis for escheating the real estate.
If an individual files, he or she must send written notice of the filing and the petition itself to the attorney general. The state may want to participate.
Facts necessary for abandoned property to be escheated to the state
The steps below are general. You will need to check with your local laws for the specific process for your area.
- The state will have the owner presumed dead if he or she has been absent from the residence for at least seven years and his or her existence is not known by anyone.
- If the owner’s death is known and a will is not found, the state will wait for seven years for it to be probated in the county or city where the real estate is located. Probate is the legal process that takes place after someone dies. If the will is not probated by then, the state will declare that the owner died intestate by presumption of intestacy. Intestacy means that the person dies without making a valid will.
- The state may take legal action if it feels that abandoned property administered in probate was done so by fraud or mistaken facts. It can petition the probate court to review the probate decree. If the court agrees, their previous decree can be revised and corrected. The real property can then be escheated.
- If the heirs have not come forward with a lawful claim of their relative’s property or an act of ownership has not been exhibited after seven years, the court will presume the owner died without any heirs. As an example, if an heir pays the real estate taxes on the property since his or her relative died; this constitutes an act of ownership by the heir. The court will fail on its attempt to presume death without any heirs. The abandoned real estate will not be escheated to the state. It will not become city or county owned property.