Property titled in a deceased person’s name almost always has to go through probate. A limited Missouri exception, for real estate only, may permit the heirs to keep it out of probate. It is often called an affidavit of heirship, but unless it is a deed, it does not transfer the property, so our attorneys prepare a Deed of Heirship.
At the Piatchek Law Firm, our attorneys can help you if you are looking for advice on probate, including how to handle real estate that is still titled into a deceased person’s name after their own death. Typically, when someone dies and leaves property titled in their name, the property becomes "stuck" in the name of the deceased individual. The property will almost always have to go through probate to get "unstuck," i.e., out of the deceased person’s name and transferred into the names of the living heirs.
Exception to the Probate Rule: Affidavit of Heirship
Our attorneys see firsthand that property that is still titled into the name of a deceased owner almost always has to go through probate. However, there is a limited exception (which involves real estate only) that may permit the heirs to keep the real estate out of probate. This exception can be called an affidavit of heirship, deed by heirs, or Deed of Heirship. If the deceased has been dead for more than one year, and all the legal heirs are in agreement, this method may work for your family. In addition, there are several other contingencies that must occur to take advantage of this exception.
Does an Affidavit of Heirship Transfer the Property?
Not on its own. Unless it is a deed, it does not transfer the property. That is why, for this exception, our attorneys prepare a Deed of Heirship.
Rules That Apply to the Missouri Affidavit of Heirship
The following conditions must be met to use an affidavit of heirship in Missouri:
- This method can be used for real estate only.
- The real estate must be titled into the name of the deceased individual.
- The deceased person must have been dead for more than one year.
- No Will can have been admitted to probate within one year.
- No probate estate can have been opened, commenced, or administered.
- All of the legal heirs (as specified under Missouri law) and each of the heirs' spouses must be in agreement and willing to cooperate.
How Does a Deed of Heirship Transfer the Real Estate?
If you qualify for this exception to the general probate rules, one of our attorneys can prepare the Deed of Heirship. It will need to be signed by all parties and their spouses (if married), and the papers will need to be filed in the county recorder's office where the property is located. Once this is completed, the real estate will have been officially transferred to the heirs, probate-free. The heirs or Grantees can do what they wish with the property.
What If There Are Assets Other Than Real Estate?
An affidavit of heirship only applies to real property. If there are other types of assets that need to be transferred, an affidavit of heirship will not be helpful. In those situations, you will likely need to go through the determination of heirship proceeding.
| Affidavit of Heirship (Deed of Heirship) | Determination of Heirship | |
|---|---|---|
| What it covers | Real estate only | Other types of assets still titled in the name of the deceased |
| Time since death | The deceased must have been dead for more than one year | Used when it has been more than one year since the date of death |
| Probate Court | May permit the heirs to keep the real estate out of probate | A petition is filed with the Probate Court |
| The heirs | All legal heirs and their spouses must agree and sign | The petitioner lists anyone who might be an heir, using "reasonable diligence" |
| Result | The real estate is officially transferred to the heirs once the papers are filed with the county recorder | An order from a judge that sets out heirship, which you can show to anyone holding property on behalf of the deceased |
For an overview of every route, see our page on the different types of probate estates.
What Does a Deed of Heirship Cost?
A Deed of Heirship can often be done on a flat fee. If you are interested, request a free quote.
Contact Us Today
Does your situation fit the above circumstances? Do you have questions about property titled into a deceased individual’s name? Do you want to learn how to avoid probate? Do you have any other questions about the probate process? If so, please contact the Piatchek Law Firm at 417-882-5858. You can talk directly with our attorneys, who should be able to answer your questions and guide you through this sometimes difficult undertaking.
Remember that the process does not always have to be complicated or frustrating, especially if you have knowledgeable counsel at your side. We want to handle your probate and real estate issues carefully and correctly, and we know you want the same. We will do our best to assist you in accomplishing this goal.
