Missouri Affidavit of Heirship

Introduction

Key Things to Know

1. 1

   Missouri's statute does not appear to cover the free-standing affidavit this page is about. Mo. Rev. Stat. Section 490.370 applies only to a heirship recital inside a deed made by people claiming to be heirs, or to an affidavit made by one of that deed's makers and attached to it. An affidavit sworn on its own by a neighbor or other third party, with no accompanying heirs deed, does not fit that description, and Missouri has no general affidavit-affecting-title provision to catch it. No Missouri court decision settles the point, so ask a Missouri attorney before relying on a standalone affidavit here.

2. 2

   Where the statute does apply, it gives weaker weight than prima facie evidence. Section 490.370 lets the recital or affidavit be read in evidence as the testimony of the person who made it, in a later suit over title to the land. That substitutes for the maker taking the stand, and carries whatever weight the judge or jury gives one witness's word. It shifts no burden and creates no presumption.

3. 3

   Three conditions must all be met before any of it can be read into evidence. The maker of the deed or affidavit must be dead, absent from Missouri, or otherwise disqualified from testifying; the deed must have been on record with the recorder of deeds at least five years before the suit was filed; and the claimant, or someone through whom the claimant takes, must have paid the property taxes on the land for three different years before the suit was filed.

4. 4

   The affiant must be one of the deed's own makers, the very heirs claiming the land, not an outside witness. Section 490.370 requires an affidavit made in connection with the deed by one or more of its makers. Missouri sets no requirement that the affiant be disinterested, and imposes no minimum affiant count beyond that single maker.

5. 5

   This affidavit does not transfer, convey, or vest title to real property. Under Mo. Rev. Stat. Section 473.260, Missouri real property passes to the decedent's heirs or devisees automatically at death. The recital or affidavit records who those heirs are; it never functions as a conveyance.

6. 6

   This route covers real property only. File the deed carrying the recital, with any attached affidavit, in the office of the recorder of deeds of the county where the real estate, or some part of it, is situated. Missouri's small estate affidavit under Mo. Rev. Stat. Section 473.097 is a different instrument that also reaches real property and can establish a distributee's right to succeed to it, so the two routes should not be confused.

7. 7

   Missouri's more reliable routes sit elsewhere. The small estate affidavit under Section 473.097 lets distributees establish their right to real property by recording the affidavit and a probate clerk's certificate, for estates at or under the statutory value limit. A judicial determination of heirship under Section 473.663 produces a court decree that is conclusive evidence of heirship and gets recorded against the land. No Missouri statute we could locate prescribes an affidavit-of-heirship form, so ask a Missouri attorney or the probate clerk which form fits your situation.

Missouri Requirements for Affidavit of Heirship

• Missouri Statute Reaches Only a Deed-Attached Affidavit

  Mo. Rev. Stat. Section 490.370 applies only to a heirship recital inside a deed made by claimed heirs, or an affidavit made by one of that deed's makers and attached to it. A free-standing affidavit with no accompanying heirs deed does not fit that description, and no Missouri court decision confirms it has any effect under this statute.

• Missouri Evidentiary Effect Is Testimony, Not Prima Facie

  Section 490.370 lets the recital or affidavit be read in evidence only as the maker's own testimony, once the maker is dead, absent from Missouri, or otherwise unable to testify, the deed has been of record five years, and the claimant has paid property taxes for three different years before suit.

• Missouri Affiant Must Be a Maker of the Deed

  The affiant must be one or more of the deed's own makers, the heirs conveying the land, under Section 490.370. Missouri imposes no disinterested-affiant requirement and no minimum affiant count beyond that one maker.

• Missouri Affidavit Does Not Transfer Title

  Real property devolves to Missouri heirs automatically at death under Mo. Rev. Stat. Section 473.260. The recital or affidavit documents who the heirs are for the record; it does not transfer, convey, or vest title.

• Missouri Real Property Only, Boundary With the Small Estate Route

  This document addresses real property only. Missouri's small estate affidavit under Section 473.097 also reaches real property and can establish a distributee's right to succeed to it, so the two routes should not be confused.