Massachusetts Affidavit of Heirship
G.L. c. 183, section 5A makes a recorded kinship statement admissible evidence of title, not prima facie proof, and Massachusetts conveyancing practice relies on it only when the decedent died more than 25 years ago with no probate anywhere.
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What brings you to an affidavit of heirship?
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Introduction
An affidavit of heirship is a sworn statement identifying a deceased person's heirs. It is evidence of who the heirs are, not a deed, and it does not transfer, convey, or vest title to real property. Massachusetts recognizes the instrument by statute, but the statute lives in the conveyancing chapter rather than the probate code, and it never uses the words affidavit or heir: General Laws chapter 183, section 5A lets a sworn statement of a person's kinship or lack of kinship, or of the date of birth or death, that relates to title to land be filed for record in the registry of deeds. Recording is mandatory and takes effect immediately, with no waiting period, but the evidentiary payoff is thin: the recorded statement is admissible in evidence in support of the title, not prima facie evidence, and it creates no presumption. Massachusetts conveyancing practice, under Real Estate Bar Association Title Standard No. 14, relies on a recorded section 5A statement to pass title from the heirs only where the decedent died more than 25 years ago with no probate proceeding filed anywhere. For a recent death, the affidavit is largely symbolic; the working tool is a Probate and Family Court determination of heirs, available at any time with no personal representative required.
Key Things to Know
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In Massachusetts, this affidavit does very little for a recent death. General Laws chapter 183, section 5A lets a sworn kinship statement be recorded, but Massachusetts conveyancing practice under Real Estate Bar Association Title Standard No. 14 treats it as reliable proof that title passed to the heirs only where the decedent died more than 25 years ago with no probate proceeding filed anywhere. If your relative died recently, this affidavit is not the tool; a Probate and Family Court determination of heirs is.
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Massachusetts gives the recorded statement the weakest evidentiary effect among the states that recognize this instrument. Section 5A makes it admissible in evidence in support of the title, full stop; it is not prima facie evidence, creates no presumption, and shifts no burden. It only helps in a court proceeding about that title, and only to prove the facts stated, not general family history.
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The commonly cited Massachusetts statute is the wrong one. General Laws chapter 183 has two affidavit-of-title provisions. Section 5A names kinship and date of birth or death and gives the recorded statement evidentiary effect. Section 5B is a general title affidavit that requires a certificate from a Massachusetts attorney and confers no evidentiary effect at all. A form citing section 5B for heirship is citing the wrong section.
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Section 5A does not say who may make the statement. It does not require personal knowledge, does not require the affiant to be disinterested, and sets no minimum number of affiants. The only requirement is a formality: the statement must be sworn before a notary or other officer authorized to administer oaths.
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Record the statement in the registry of deeds for the county, or the registry district in counties that are split, where the land lies. Massachusetts has 21 registry districts across 14 counties. Recording is mandatory once filed, since section 5A says the statement shall be recorded, but neither section 5A nor 5B tells the registry how to index it, so name the decedent as the record owner in the statement and ask the registry how it will be indexed.
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This affidavit will not get you anywhere for registered land held under a Land Court certificate of title. Massachusetts has both recorded land and registered land, and registered title passes only through General Laws chapter 185, section 97, a Land Court process that requires the Probate and Family Court to have already issued letters before a new certificate can be entered. Ask whether the property is recorded land or registered land before relying on this affidavit.
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This affidavit does not transfer, convey, or vest title. Massachusetts real property passes to the heirs automatically at death under chapter 190B, section 3-901. To establish who the heirs are without waiting 25 years, petition the Probate and Family Court for a determination of intestacy and heirs under chapter 190B, sections 3-401 and 3-402(c), which can be filed with no personal representative appointed and carries no deadline. A small estate affidavit is a different tool: it collects personal property under a value cap and does not reach real property at all.
Key decisions before you file
Before you file a Affidavit of Heirship in Massachusetts, a few decisions shape the document: which option to choose and what each one means. The Affidavit of Heirship guide walks through them.
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Massachusetts Requirements for Affidavit of Heirship
General Laws chapter 183, section 5A names kinship and date of birth or death and gives a recorded statement evidentiary effect. Section 5B is a different provision requiring a Massachusetts attorney's certificate and confers no evidentiary effect at all. Cite section 5A, not section 5B.
Section 5A makes a recorded statement admissible in evidence in support of the title in a Massachusetts court proceeding. It is not prima facie evidence, creates no presumption, and shifts no burden of proof.
Real Estate Bar Association Title Standard No. 14 is conveyancing practice, not statute. It treats a title from the heirs as not defective on the strength of a recorded section 5A or 5B statement only where the decedent died more than 25 years before the statement is relied upon and no probate proceeding was filed anywhere.
A section 5A statement does not establish title to land registered under General Laws chapter 185. Registered land passes to heirs only through a chapter 185, section 97 Land Court proceeding, after the Probate and Family Court has already issued letters testamentary or of administration.
Section 5A sets no personal-knowledge requirement, no disinterest requirement, and no minimum number of affiants. The statement need only be sworn before a notary or other officer authorized to administer oaths in Massachusetts.
Massachusetts real property passes to the decedent's heirs or devisees automatically at death under General Laws chapter 190B, section 3-901. This statement is evidence of who those heirs are; it does not transfer, convey, or vest title.
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Check my Affidavit of HeirshipFrequently Asked Questions
No. Massachusetts real property passes to the heirs automatically at death under General Laws chapter 190B, section 3-901. A statement recorded under chapter 183, section 5A is evidence supporting who the heirs are; it does not transfer, convey, or vest title.
Section 5A does not name who may sign. It does not require personal knowledge, does not require the affiant to be disinterested, and sets no minimum number of affiants. The only requirement is that the statement be sworn before a notary or another officer authorized to administer oaths.
Immediately on recording. Section 5A sets no waiting period; admissibility attaches the moment the statement is recorded in the registry of deeds. But Massachusetts conveyancing practice will rely on the recorded statement to pass title from the heirs only where the decedent died more than 25 years ago with no probate proceeding filed anywhere, under Real Estate Bar Association Title Standard No. 14.
In the registry of deeds for the county, or the registry district in the counties that are split, where the land or any part of it lies. Massachusetts has 21 registry districts across 14 counties. Recording is mandatory once the statement is filed, since section 5A says it shall be recorded.
No. Title to registered land held under a Land Court certificate passes only through a Land Court proceeding under General Laws chapter 185, section 97, which requires the Probate and Family Court to have already issued letters testamentary or of administration before the Land Court will enter a new certificate. A recorded section 5A statement will not get you there.
Section 5A is the heirship provision: it names kinship and date of birth or death and gives a recorded statement evidentiary effect, with no attorney certificate required. Section 5B is a different, general title affidavit that requires a certificate from a Massachusetts attorney and gives the recorded affidavit no evidentiary effect at all.
No. Massachusetts voluntary administration under chapter 190B, section 3-1201 is filed with the Probate and Family Court, covers personal property only up to $25,000 in value, and is not recorded anywhere. An affidavit of heirship is recorded in the registry of deeds and addresses real property; it evidences who the heirs are and does not move title.
Petition the Probate and Family Court for an order determining intestacy and heirs under chapter 190B, sections 3-401 and 3-402(c). The petition can be filed with no personal representative appointed and carries no deadline, unlike the affidavit, which conveyancers will not rely on for a recent death.