For more than 150 years, companies called “heir hunters” have operated in the shadows of the court system. Heir hunters monitor probate filings to identify intestate decedents who have missing or unknown relatives. They then perform genealogical research, locate the decedent’s kin, and offer to inform them about their inheritance rights in exchange for a share of the property. States are sharply divided about whether to enforce contracts between heir hunters and heirs. This discord stems from the fact that we know virtually nothing about heir hunting.
This Article illuminates this mysterious corner of succession law by reporting the results of the first empirical study of heir hunting. Its centerpiece is a hand-collected dataset of 1,349 recent probate matters from San Francisco County, California. Because a unique disclosure norm in California effectively requires heir hunters to file their contracts in the record, the Article is able to analyze a rainbow of issues that would normally be private, such as the scope of the industry, how heir hunters operate, and the context, content, and timing of their agreements.
The Article reaches three main conclusions. First, heir hunting is a booming business. Indeed, the Article unearths 219 agreements between heir hunters and heirs from twenty-seven American states and eleven foreign countries. Second, heir hunting can be socially valuable. Heir hunters sometimes locate long-lost relatives after everyone else has failed. Third, heir hunting is also problematic. For one, the Article’s multivariate regression analysis reveals that cases with heir hunters are especially likely to devolve into litigation. In addition, heir hunters usually pay for the heir’s attorney, thus creating a stark conflict of interest. Finally, heir hunters charge exorbitant fees and routinely contact heirs before the administrator has even tried to locate them. Using these insights, the Article critiques existing approaches to heir hunting and suggests reforms that would enable the legal system to harness the practice’s benefits while limiting its costs.
In Australia the Department of Finance is undertaking a review of the Lands Acquisition Act 1989 (Cth) for recommendations regarding legislative, policy and administrative reforms to the LAA.
Changes to the legislation will not be retrospective. Any acquisition processes that commence before legislative changes occur will continue to fall under the existing LAA provisions to ‘provide certainty for claimants, acquiring authorities and other persons involved in an acquisition process’. The Review will be ‘guided by the principles of equity and fairness; timeliness; transparency; and value for money’.
The discussion paper for the Review states
It is now 30 years since the commencement of the Lands Acquisition Act 1989 (the LAA), the key legislation used by the Commonwealth to acquire and dispose of interests in land. Over time, complex land acquisition processes involving compensation payments to land holders have become more difficult to finalise. The Government has therefore asked for a review of the LAA to look at how it could be improved to best support the Commonwealth and other interest holders into the future.
Terms of Reference for the Review are
The Government is undertaking a review of the LAA to ensure it:
a. reflects community expectations around public sector responsiveness and timeliness;
b. minimises delay and uncertainty in finalising compensation claims with affected parties; and
c. minimises administrative costs and provides value for money.
The Review will consider the broad scope of operations and functions under the LAA, including administrative requirements. In doing so, it will consider matters such as, but not limited to: how the LAA can best support acquisition and disposal of land by the Commonwealth for public purposes in a way that is fair and efficient to all parties; whether the LAA legislation and associated guidance can be simplified to make it easier for all parties to understand and apply; and how best to balance the main objectives of the Act with modern public administrative and legal principles.
The purpose of the LAA is to provide a mechanism for the Commonwealth to acquire land for essential public infrastructure (e.g. roads, Defence facilities and airports), while respecting the rights of interest holders, such as those whose land is being acquired. The LAA sits within the context of Section 51(xxxi) of the Australian Constitution, that states the Commonwealth can make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws’.
The LAA provides the Commonwealth with a legislative framework for its property transactions, including to ensure acquisitions occur on just terms.
The Act also regulates other Commonwealth dealings in land interests including:
a. disposals of land
b. temporary entry onto land
c. land situated overseas (e.g. Australian embassies), and
d. mining on Commonwealth land.
Unlike acquisitions, these are not governed by section 51(xxxi) of the Constitution.
The Public Governance, Performance and Accountability Act 2013 (Cth) includes rules governing how Commonwealth officials are to use public resources, including those relevant to the acquisition or management of land as a public resource.
Unless exemptions apply, all Commonwealth agencies that acquire land are subject to the LAA. These ‘acquiring authorities’ include non-corporate and corporate Commonwealth entities. Some corporate Commonwealth entities are alternatively able to deal with land (by agreement, but not by compulsory acquisition) through their own enabling legislation, which gives the entity the ability to acquire and dispose of property including land, similar to that of a natural person.
The LAA falls under the responsibilities of the Minister for Finance and the Department of Finance (Finance). The Minister has delegated some powers under the LAA to officials within Finance and other acquiring authorities.
Specific questions are
Q 1. What are your views on the range of land interests and entities covered by the LAA?
Q 2. How could acquisitions and their administration be reformed to encourage acquisition by agreement and improve the experience for interest holders?
Q 3. What changes could be made to reduce the time to resolve compensation claims? You might like to consider which party should start the process, whether timeframes should apply and the use of face to face meetings and mediation.
Q 4. What changes could be made to the types of compensation to ensure expenditure of public money represents value for money? You might like to consider time limits and caps in your response.
Q 5. How could the LAA review processes and reconsideration avenues be changed to encourage early resolution?
Q 6. What changes could be made to the CPDP to support better land use management and/or administrative practices? You might like to consider off-market sales and land swaps in your response.
Q 7. Is the concept of ‘public purpose’ sufficiently clear? If not, how could it be improved?
Q 8. Are any changes required to the LAA provisions dealing with acquisitions and disposals of overseas land?
Q 9. Are any changes to the LAA and/or CPDP needed in the context of negotiating ILUAs?
Q 10. Are the current arrangements for mining on Commonwealth land sufficient and appropriate? Is there a need for national uniformity?
Q 11. How can the ‘disposal’ power under the LAA be flexible enough to manage future policy priorities?
Q 12. Should amendments be made to the LAA to support future joint projects between the Commonwealth and states and territories?
