If you’re dealing with the passing of a loved one and the subsequent distribution of their property, navigating through the process can seem overwhelming. One of the terms that you may come across is the “Affidavit of Heirship.” So what is an Affidavit of Heirship, and how does it relate to property matters in Massachusetts? Let’s take a closer look.
What is an Affidavit of Heirship?
An Affidavit of Heirship is a legal document used to establish the legal heirs of a person who died “intestate”, which means without a will. This affidavit is typically used when the deceased person owned real estate and who can inherit the property needs clarifying.
The Affidavit of Heirship is usually given to someone who knew the family but does not stand to inherit from the estate. For example, a neighbor or family friend. This person is then known as the “affiant”, and provides details about any potential heirs. The affidavit is designed to establish a clear chain of title to the property.
When is an Affidavit of Heirship used?
An Affidavit of Heirship is usually used in the following situations:
- Intestacy (death without a will): If someone dies without a legitimate will in place, an Affidavit of Heirship can be used to establish the legal heirs.
- Real estate transfer: If the primary asset of the deceased is real estate, the Affidavit of Heirship can establish a clear chain of title for the property, making it easier to transfer ownership to the rightful heir.
- Avoid probate: As we’ll cover shortly, an Affidavit of Heirship can be used as a simpler alternative to probate.
- Small estates: Many jurisdictions allow an Affidavit of Heirship to be used for small estates, where the value of the estate is less than the minimum that would make probate necessary.
- Clarifying ownership: An Affidavit of Heirship can be used even years after someone’s death to clarify any issues regarding the property title.
Does an Affidavit of Heirship mean you can avoid probate?
In some cases, yes. It depends on your jurisdiction and the specific circumstances of the estate. Generally, all estates need to go through probate, but there are a few caveats. The first is if the estate is worth $25,000 or less and the second is to use an Affidavit of Heirship to deal with their real estate.
An Affidavit of Heirship can be less costly than probate, but it may not help you avoid probate for your other assets, like personal property or financial accounts. It also may not protect the property from creditors – it’s always best to consult with a probate attorney before making any decisions.
You should also note that not all jurisdictions and institutions accept Affidavits of Heirship, such as governments, banks, and title companies, so do your research and find out what is acceptable and expected in your area.
Can an Affidavit of Heirship transfer a house title in Massachusetts?
As of the time of writing, Massachusetts does not specifically provide for the use of an Affidavit of Heirship to directly transfer title to real estate property, such as a house. In other words, despite there being “Massachusetts Affidavit of Heirship” forms available online, you cannot use one to transfer ownership of a property (at the time of writing – July ‘23). You must either go through Formal Probate, Informal Probate, or Voluntary Administration, though the latter is not suitable for real estate. If you are uncertain how to proceed legally, please speak to a probate attorney or another legal professional in Massachusetts who can advise you on current laws.
What does an Affidavit of Heirship include?
An Affidavit of Heirship typically includes:
- Deceased’s information (legal name, date of death, last address)
- Affiant’s information (the person swearing to the affidavit)
- Family information (the deceased’s family, including those who have already passed away)
- Property information (the property’s location and description)
- Statement of no probate (a statement that no probate proceedings are currently underway)
- Oath and signature (by the affidavit)
Who has to sign an Affidavit of Heirship in Massachusetts?
Unfortunately, an Affidavit of Heirship is not a legitimate way to transfer property ownership in Massachusetts at this time.
How do I get an Affidavit of Heirship in Massachusetts?
Massachusetts does not recognize an Affidavit of Heirship as a legitimate way to transfer property ownership, so despite some forms being available online, you should look into the formal and informal probate process. You can find more information about Massachusetts probate here.
Are there any limitations of an Affidavit of Heirship?
Yes – even if you’re in a state that allows them, they have some limitations. They are:
- Only works for real estate – you cannot deal with other aspects of someone’s estate with an Affidavit of Heirship
- Not recognized by all jurisdictions or entities (such as banks and title companies)
- It will not protect the property from creditors
- Probate is better if there is any doubt about who should inherit the property
- If there are any mistakes (like an heir is not identified) there may not be a clear transfer of title
If you have any doubts about what would be best for your situation, speak to an attorney.
Feeling Overwhelmed? We Can Help
Navigating property matters after the passing of a loved one can be a complex and emotional process, but you don’t have to go it alone. We are professional home buyers in Massachusetts so we’ve seen every situation, and we can help guide you toward your next step, whether that be speaking to a probate lawyer or selling the property.
We can also make a cash offer on the property when you are ready to sell. This can simplify the entire process and provide you with immediate financial relief, giving you one less thing to worry about during a challenging time.