Missouri Affidavit of Heirship
Section 490.370 only reaches an affidavit attached to an heirs deed by one of its makers, and even then it is read as one witness's testimony, not prima facie evidence.
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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, used to document a family history for the record rather than to transfer property. Missouri's only statute naming heirship affidavits, Mo. Rev. Stat. Section 490.370, sits in the evidence chapter, not the title or probate code, and 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. A free-standing affidavit sworn by a neighbor and recorded on its own does not fit that description, and no Missouri court decision settles whether it has any effect under this statute. Even then, the statute does not make the recital prima facie evidence the way Texas and Alabama do. It lets the recital be read in evidence as the testimony of the person who made it, and only after three conditions are all met: the maker is dead, absent from Missouri, or otherwise unable to testify; the deed has been of record at least five years before the suit was filed; and the claimant or a predecessor has paid property taxes on the land for three different years before the suit. Missouri real property passes to the heirs automatically at death under Mo. Rev. Stat. Section 473.260, so this affidavit does not transfer, convey, or vest title regardless of which of these conditions are met.
Key Things to Know
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Key decisions before you file
Before you file a Affidavit of Heirship in Missouri, 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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Missouri Requirements for Affidavit of Heirship
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.
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.
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.
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.
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.
Does your Affidavit of Heirship need to be notarized in Missouri?
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Check my Affidavit of HeirshipFrequently Asked Questions
No. It does not transfer, convey, or vest title to real property. Under Mo. Rev. Stat. Section 473.260, Missouri real property passes to the heirs or devisees automatically at death. The recital or affidavit records who those heirs are; it does not make them owners.
Missouri's only heirship statute, Section 490.370, applies to a recital inside an heirs deed or an affidavit attached to that deed and made by one of its makers. A free-standing affidavit sworn on its own by a third party does not fit that description, and Missouri has no general provision that gives an unattached affidavit any effect under this statute. No Missouri court decision settles the point, so ask a Missouri attorney before recording one on its own.
One or more of the deed's own makers, the heirs claiming the land, under Section 490.370. Missouri does not permit or require an outside, disinterested witness for this purpose; the statute is built around the heir-grantors swearing to their own family history.
The deed carrying the recital must have been on record at least five years before the suit is filed, and the maker must be dead, absent from Missouri, or otherwise unable to testify, and the claimant must have paid property taxes on the land for three different years before the suit. All three conditions apply together.
No. Section 490.370 lets the recital be read in evidence only as the testimony of the person who made it, once the affiant is unavailable and the other conditions are met. That is weaker than a prima facie standard: it shifts no burden and creates no presumption, and the fact-finder weighs it like any other witness's word.
Section 490.370 requires the claimant, or a predecessor through whom the claimant takes title, to have paid the property taxes for three different years before the suit was filed. Without that tax history, the recital or affidavit cannot be read into evidence under this statute, regardless of how long the deed has been recorded.
No. Missouri's small estate affidavit under Section 473.097 is a separate instrument that, unlike the heirship recital, can establish a distributee's right to succeed to real property once recorded with a probate clerk's certificate, for estates at or under the statutory value limit.
A judicial determination of heirship under Section 473.663 is available where no administration was opened within a year of death. It produces a court decree that is conclusive evidence of the facts determined and is recorded against the land, unlike the testimony-only effect of a Section 490.370 recital.