Disclaimer
This article is for informational purposes only. It does not constitute legal advice. Always consult a licensed attorney for guidance tailored to your situation.
Detailed Answer
When a Massachusetts resident dies owning real property in another state, heirs typically start an ancillary probate in that state. However, if all heirs agree and the property’s value falls below the local small-estate threshold, you may avoid formal ancillary probate by using affidavit procedures and a simple deed transfer.
1. Identify the Property and Applicable Jurisdiction
First, determine where the real estate is located and review that state’s laws on small-estate or heirship affidavits. Each state sets its own dollar limits and form requirements for transferring property without full probate.
2. Obtain a Certified Death Certificate
You’ll need a certified copy of the decedent’s death certificate. Order this from the Massachusetts Registry of Vital Records.
3. Prepare an Heirship or Small-Estate Affidavit
If the out-of-state jurisdiction permits, draft an affidavit signed by all heirs stating:
- The decedent’s name and date of death;
- The property description and county;
- That no ancillary probate (or administration) is pending;
- That the aggregate value does not exceed the state’s small-estate threshold;
- That all heirs consent to the transfer.
Follow that state’s statutory form and filing rules. For Massachusetts personal property, M.G.L. c.190B §3-110 allows a similar affidavit to collect intangible assets: M.G.L. c.190B §3-110. Real estate requires the other state’s statute.
4. Execute a Quitclaim or Warranty Deed
Prepare a deed from the decedent’s estate to the heir(s). Even if all heirs agree, every heir must join in signing. Include a legal property description identical to the recorded deed.
5. Record the Documents in the Property State
Submit the following to the county recorder or land records office where the property sits:
- The certified death certificate;
- The signed affidavit;
- The executed deed;
- Any required cover sheets or transfer tax forms.
Pay the statutory recording fees and any transfer taxes.
6. Confirm Title Transfer
After recording, request a certified copy of the updated deed or title report. Verify the new owner name and that no liens or encumbrances remain unexpected.
7. Close Out Remaining Tasks
If the property is sold or generates income, distribute net proceeds pursuant to each heir’s share. File any required state tax returns in the property state.
If the out‐of‐state threshold exceeds the small‐estate limit or the state disallows affidavits for real property, you must open an ancillary probate proceeding under Massachusetts law at M.G.L. c.190B §3-602 and the local state’s probate code.
Helpful Hints
- Research the specific small‐estate or heirship affidavit rules in the state where the real estate lies.
- Collect a complete chain of title to avoid post‐transfer challenges.
- Ensure all heirs sign the same document set to prevent disputes.
- Keep certified copies of all recorded documents and certificates.
- Consider a licensed attorney in the property’s state if complex issues arise.