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Modern Estate Planning Blog

Elder Law & Special Needs Planning

Adverse Possession and Estate Planning: Avoid Squatters On Your Family’s Inheritance!

January 24, 2018

What comes to mind when you think of “adverse possession,” if anything? Do you think of squatters taking over a vacant house or a person continually encroaching on their neighbor’s yard? Adverse possession can create problems for property owners, especially those planning estates or receiving them through inheritance.

What is adverse possession?

Adverse possession is the open, exclusive, and continuous use of a property that one doesn’t own or have permission from the owner to use. Each state is different, but generally speaking, adverse possession of a property must be ongoing for years, and the adverse possessor must improve the property in some way.

How could it affect estate planning?

Squatters who take over abandoned buildings or houses may claim adverse possession when accused of trespassing. This can be a problem for those who bequeath properties to loved ones that they may not have actually used or visited in a long time. Their heirs could be in for quite a surprise when they find the properties occupied and someone else claiming rights to them!

However, it’s actually more common for somebody to adversely possess a portion of somebody else’s property without even realizing that they’re doing it.

Imagine that you own a home with a large yard, and there’s a home with a large yard next yours. The fence between the homes has been there for decades; in fact, it was there when you bought the property. You didn’t check to make sure it was on the property line. However, as it turns out, the fence is actually 2 feet within your property, making you actually lose about 120 feet of property. Meanwhile, your neighbors have been using that property. They planted trees and flowers and they’ve paid the taxes. Everyone just assumed it was the neighbor’s property.

Now imagine after you die, your heirs discover the error and that they are receiving less property than anticipated. If the neighbor can successfully claim adverse possession, a court may simply let the neighbor have those 120 feet, and they’re no longer part of your estate.

What can you do about it?

As you create your estate plan with your Folsom estate attorney, discuss any properties you haven’t used or visited in a while. You may want to make sure that they’re not occupied or being used. Also, discuss any real estate where you’re not certain of the boundaries. You can hire a surveyor to find the exact boundaries of your property so you can correct any mistakes now, so that your heirs aren’t forced to deal with a mess later. In order to make a claim of adverse possession in California, someone must continuously use a property for 5 years and pay the taxes on the property. A Folsom estate lawyer can help you figure out what to do to ensure that all your real estate is yours, free and clear, and everything you bequeath is passed down smoothly to your heirs without drama or unnecessary court battles.

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