How to Understand Probate Court Records and Your Deed & Title
By William P. O’Donnell
Norfolk County Register of Deeds
People sometimes confuse the terms deed and title. A deed is a written document that transfers ownership rights to a property from one party to another. Unlike the title to a vehicle that consists of a one-page document issued by the Registry of Motor Vehicles, title to real estate is a legal principle that establishes whether a party has the legal right to use, control and eventually sell a property as evidenced by documents that are recorded and become public records.
The majority of documentation affecting the title to real estate is recorded here at the Registry of Deeds. In Norfolk County the Norfolk County Registry of Deeds is located at 649 High Street in downtown Dedham across from the gold domed Superior Court. However, there are numerous instances where title to real estate may also be affected by records filed with the Probate and Family Court. Most people acquire their property by a deed that identifies the grantor and the grantee, the purchase price, if any and a legal description. The deed is recorded here at the Norfolk Registry of Deeds for the 28 communities that make up Norfolk County. Our trained staff indexes the relevant information and stamps it with a book and page reference. Copies of the deed can be easily accessed by checking our indexes which can be found on the Registry website, www.norfolkdeeds.org and obtaining the book and page reference. All the land records dating back to the establishment of Norfolk County in 1793 are available via the Norfolk Registry’s internet land record research system.
Deed book and page references may be needed when a party is preparing to sell or mortgage property or drafting estate plans. Banks or insurance companies may need book and page references to process loan applications or insurance policies.
We often get questions from property owners who can’t find the book and page reference to their deed. More often than not, that is because the owner acquired their title through the probate process, not by a recorded deed.
When a person owns real estate in just their name and dies, their property, including any real estate passes to their estate which is then probated in the Probate Court for the county where they resided. The Probate and Family Court for Norfolk County is located at 35 Shawmut Road, Canton. Most experienced attorneys and title examiners, when examining title to a specific property will examine not only the records at the Registry of Deeds but will also check the Probate and Family Court records.
When the decedent (the individual who passed away) leaves a will, the party that has been named in the will as a personal representative submits the will and supporting documentation including a petition for formal or informal probate of the will. Title to the real estate passes under the terms of the will to whomever is named as the devisee or devisees for that property, subject to the Court issuing a decree allowing the will. A similar process is followed when the decedent does not leave a will. In that case title to the property would pass per Massachusetts State Law to the decedent’s heirs-at-law. In either case, the party acquiring title to the property has the same interest they would have if the property was deeded to them. However, with title that is acquired through the probate process there is no recorded deed with a book and page reference.
The problem with the lack of a deed reference when title is obtained through probate was alleviated somewhat when Massachusetts enacted the Massachusetts Uniform Probate Code in March 2012. The Massachusetts probate statute now provides for the recording of a “deed of distribution” from the personal representative to the devisees or heirs. This allows owners of recorded land to reference the book and page of the deed of distribution that is recorded at the Registry of Deeds as their source of title. However, if the property is registered land, deeds of distribution are not filed and additional steps have to be taken to establish title in the devisees or heirs.
There are two categories of land records in Massachusetts: recorded and registered. All land is in one category or the other, and it is possible for a single parcel to include both types. Registered land comprises about twenty (20%) percent of the property in Norfolk County. Registered land deeds are given a document number and noted on a certificate of title that is issued in the name of the new owner. Registered land was created in Massachusetts by state law in 1899 and Norfolk County’s registered land department in the Land Court at the Norfolk Registry of Deeds began in 1900.
Title to registered land is subject to the rules of the Land Court, a department of the Trial Court. Deeds of distribution are not accepted for registered land. In order to establish title to registered land in the name of a devisee or heir-at-law, a petition and copies of the probate proceedings have to be filed with the Land Court in Boston. Once the Land Court is satisfied that the necessary steps have been taken to establish title in the devisees or heirs, the Court will issue an order that is filed in the Registry’s land registration section and a new certificate will be issued. The Chief Title Examiner of the Land Court has issued a memorandum detailing the process that can be found on-line at:
Divorce records filed in the Probate and Family Court records may also impact title to real estate. Purchasers of property from parties who are in the process of getting divorced or have been divorced should examine the terms of any separation agreement that have been filed to make sure the terms of the agreement as it relates to the real estate have been complied with. Attorneys and title examiners tasked with certifying title to a real estate property will check the Probate and Family Court records including any divorce records. In addition, by operation of Massachusetts law, the tenancy of parties who acquired title as tenants by the entirety will became a tenancy in common upon the final judgment of divorce. If either party dies before they convey the property, the interest of the deceased party will have to be probated; it will not pass to the surviving party.
The Norfolk Registry of Deeds has a computer on-site dedicated to Probate and Family Court records for the convenience of attorneys and title examiners. The Trial Court also has a website at https://www.masscourts.org/eservices/home.page.2 where records can be found pertaining to cases filed in the various courts, including Probate and Family Court divorce and probate records.
As always, if Norfolk County residents have a Registry related question about the title to their property, the answer is just a phone call away by dialing the Customer Service Center at (781) 461-6101. The department is open Monday through Friday from 8:30AM to 4:30PM.