Transfer Out-of-State Property Interest When All Heirs Agree Without Formal Ancillary Probate

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in the jurisdiction where the property is located.

Detailed Answer

When a Michigan resident dies owning real property in another state, Michigan courts lack direct authority over that land. Instead, the out-of-state jurisdiction’s probate and land-transfer statutes apply. If all heirs agree, you can often skip formal ancillary probate by using streamlined procedures such as an Affidavit of Heirship or a Small Estate Affidavit, combined with a properly executed deed. Below are the general steps under Michigan law and common practices in other states.

1. Identify the Governing Jurisdiction

Confirm the property’s location and research that state’s probate code and real property transfer statutes. Most states post their laws and required forms online (for example, California’s at https://www.sos.ca.gov).

2. Verify an Ancillary Probate Exemption

Determine if the property qualifies for a simplified process by checking:

• Small estate limits (often a threshold value under which formal probate isn’t required)
• Nonprobate transfer options (e.g., transfer-on-death deed or affidavit of heirship)

3. Prepare an Affidavit of Heirship or Small Estate Affidavit

Under the out-of-state law, draft the required affidavit including:

• Decedent’s full name, date of death, and last residence
• Identification of all heirs, their relationships, and their signatures
• A statement that no formal administration is pending in that state
• Verification that any mandatory waiting period (commonly six months) has elapsed

Have each heir sign before a notary public.

4. Execute a Deed from All Heirs

All heirs must join in a deed (often a Quitclaim Deed) transferring the property to the intended grantee. Ensure the deed includes:

• A complete legal description of the property
• The names of all grantors (heirs) and grantees
• Proper notarization and statutory acknowledgments per the recording county’s rules

5. Record Documents Locally

Take the signed affidavit and deed to the county recorder or register of deeds in the county where the property lies. Pay applicable recording fees and transfer taxes. The recorder’s office will index and file the documents, establishing clear title in the heirs or new owner.

6. Provide Notification and Clear Title

Distribute certified copies of the recorded documents to each heir. If you plan to sell or mortgage the property, obtain a title insurance commitment or lien clearance letter to confirm no undisclosed claims remain.

Relevant Michigan Statutes

• Intestate Succession (heirs’ rights): MCL 700.2101 et seq. (MCL 700.2101)
• Small Estate Collection for Personal Property: MCL 700.4105 (MCL 700.4105)
• Affidavit to Transfer In-State Real Property: MCL 565.501 et seq. (MCL 565.501)

Helpful Hints

• Hire local counsel: A licensed attorney in the property’s state can confirm you meet all requirements.
• Check waiting periods: Many states require waiting six months or more after death before recording an affidavit.
• Order a title search: Identify any liens or encumbrances before recording your deed.
• Follow notarization rules: Each state has specific acknowledgment language; use the exact statutory form.
• Record documents together: Filing the affidavit and deed simultaneously avoids title gaps.