May title in the heir of a deceased intestate landowner be confirmed by affidavit explanatory of title filed within five years of the decedent's death?
Conflicting authorities duel over your question, Mr. Trotzig.
Given your facts (3 years since death & all heirs sign quit claim deeds), I incline to think that an affidavit plus deeds clears title.
But another title examiner may reasonably disagree.  
Both I and the putative objector can cite cases to back our respective positions.

Pro:  Pritchard v. Mulhall, 140 Iowa 1, 118 N.W. 43 (1908):
"The fourth objection made by defendant's attorneys to the abstract had reference to the title of Robert Glenn. It was claimed that it did not appear that he was the owner, for the reason that title came by descent from John Glenn, Sr., and that there had been no administration of his estate, and no showing that the subsequent conveyances to Robert Glenn were made by all the heirs of the deceased, John Glenn. John Glenn died intestate April 8, 1899, and administration of his estate might have been had at any time within five years. The abstracter did show a conveyance by six grantors, with their husbands and wives where married, to Robert Glenn and William Glenn, and a conveyance by William Glenn, unmarried, to Robert Glenn, of all of the property in controversy. The deeds did not show who were the heirs of John Glenn, Sr., deceased, nor that the eight persons, grantors and grantees, were the sole and only heirs. But it did show two affidavits, duly attested and recorded, to the effect that these parties, eight in number, were all of the heirs of John Glenn, deceased; that, while no administration of John Glenn's estate had been had, all debts against the estate were fully paid and discharged. When the time came for defendant to perform, but one year remained for taking out letters of administration on the estate of John Glenn, Sr., and plaintiff, in view of defendant's failure to make known his objections to the abstract after it was corrected and returned, may well have assumed, as he says he did, that by reason of the short time remaining for the filing of claims, all objections to the showing of title in Robert Glenn were waived. Moreover, we are of opinion that the defect was not such as to create a cloud destroying the merchantability of the title as shown by the abstract. Our probate procedure is somewhat lame with reference to showing the devolution of titles to lands which pass by descent. True a list of heirs is required to be filed, but this is not binding upon any one. Under our statute permitting the filing and recording of affidavits to explain apparent defects in title (Code, § 2957), we think the showing in this case as to the descent of the land was all that can be required, and that on the face of the abstract all the heirs of John Glenn, Sr., had conveyed their interests in the land to Robert Glenn.
"The only remaining thought is that there might be some creditors of John Glenn, Sr., who would be entitled to insist upon administration, and eventually to have the land or some part thereof subjected to the payment of claims. This, of course, was possible, but it hardly reaches to the plane of a probability. There is no occasion for administration of the estate of one deceased. Parties in interest may settle their rights without going into a court of probate. Upon the death of an ancestor, his realty passes immediately to his heirs, and ordinarily an administrator has nothing to do with it. Of course, it may be sold for the payment of debts; but not unless the personal estate is insufficient for that purpose. We are of opinion that the affidavits in this case showing the payment and discharge of all debts, especially in view of the fact that four years had elapsed after the death of the intestate, and the further fact that defendant made no objection to the abstract after its correction and return, is a sufficient answer to the claim that the abstract did not show title. ..."

Con: Siedel v. Snider, 241 Iowa 1227, 44 N.W.2d 687 (1950):
"II. Affidavits are not eligible to record except as provided by statute. Fagan v. Hook, supra, 134 Iowa at page 388, 105 N.W. 155, 158. The only pertinent statute here is section 558.8, I.C.A. which permits the filing of affidavits by the owner in possession to ‘explain’ any ‘defect in the chain of title’.
"In Fagan v. Hook, supra, defendant proposed to show adverse possession by affidavit before the enactment of what is now Section 614.17, I.C.A. permitting such showing in certain cases. We said: ‘The precise effect of this statute (Section 558.8) is not clear. It is enough in the instant case to note that it does not authorize the owner to supply a link in the chain by indicating, in the form of an affidavit, the oral evidence available to establish it. * * * Certainly it was not intended to enable any one to make out of record a title resting solely in parol.’
"It has been held that under proper circumstances affidavits may be used to show who were the heirs of a deceased title holder and that all his debts were fully paid. Prichard v. Mulhall, 140 Iowa 1, 7, 118 N.W. 43. However, in the Prichard case but one year remained for taking out administration and it is said that defendant, by failure to object to the abstract after it was corrected, should be assumed to have waived all objection. 140 Iowa, pages 7, et seq., 118 N.W. 43.
"We do not deem that decision sufficient to justify a holding here that the abstract tendered showed a merchantable title. Plaintiff's husband had been dead but six months. More than four years remained during which time some creditor or other interested person might appear and take out original administration and establish facts materially affecting the title. Section 633.47, I.C.A.
"There is of course no law to compel resort to administration by the heirs and surviving spouse of an intestate decedent. The title to his property passes whether administered upon or not. Reichard v. Chicago, B. & Q. R. Co., 231 Iowa 563, 578, 1 N.W.2d 721. The surviving spouse and heirs may agree among themselves to its distribution. Heinz v. Vawter, 221 Iowa 714, 716, 266 N.W. 486. But we are speaking here of the manner of making that devolution of title a matter of record so it may be properly reflected by an abstract.
"Under the language of Code section 558.8 affidavits are recordable only to explain defects in the chain of title. To hold that affidavits are competent to be filed in lieu of administration proceedings during the time in which such proceedings can be instituted would make the statute a device to create defects rather than to explain them, to encourage omission of administration, thereby making defects to be ‘explained’. That surely is not its purpose. Rather it is designed as a practical remedy for defects due to failure to follow orderly procedure when such procedure was available."

Siedel implicitly criticizes Pritchard for "failure to follow orderly procedure" because "such procedure was available". But Siedel does not overrule Pritchard.
I think that leaves us sitting on a sliding scale, with two measurement points for the AET's utility. 
Those be: six months passes from death = title not good v. four years passes from death = title good.  
Your situation falls in the middle... albeit closer to the "good" end.

Section 558.8 creates a presumption in favor of the facts recited in the Affidavit.
After three years that presumption becomes conclusive.
Facts will include at least the following: intestate death of John Smith, satisfaction of all his debts and charges, names of all grantees as constituting the entire class of John Smith's heirs, and so forth.

Question now devolves to this: will the buyer of the homestead property be satisfied to assume some (very slight) risk that, during the remaining two years of limitation period to open John Smith's estate, someone might do so.


David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa

----- Original Message -----
From: "Marten Trotzig" <realestate@iabar.org>
To: realestate@iabar.org, probate@iabar.org
Sent: Monday, May 14, 2018 5:08:37 PM
Subject: RE: [ISBA RealEstate]  r.e. contract question and requirement for small estate

John Smith and Amy Doe buy real estate on installment contract as tenants in common.  Contract is recorded in 2003.  John and Amy subsequently get married, but never transfer their interest in the real estate to joint tenants with rights of survivorship.  John dies in 2015 intestate.  All parties, including contract seller, agree that the deed should go solely to Amy as surviving spouse.  John’s children from a prior marriage also agree.  Such a deed is given solely to Amy with a recitation that if there is any title defect because of John’s death, Amy will have to clear it up.  Amy was hoping to keep the property and after 5 years from John’s death file an affidavit per title standard 9.8.  All of John’s children will quit claim any interest they have.  John’s only asset is his undivided half interest in the house which had a value of $25,000 or less at the time of his death.  The property qualifies as Amy’s homestead so she should inherit everything regardless.

The property now needs to be sold, and as examining attorney of the abstract I have taken the position John’s estate needs to be opened to deal with his undivided half interest.  The estate would be a small estate.  Is there anything I am missing that we could clean up title without an estate?  Would an affidavit setting forth these facts along with quit claim deeds from all of John’s children suffice?

Mat Trotzig
Trotzig & Bauerly PLC
1288 Lincoln St. SW
PO Box 336
Le Mars, IA  51031
712-546-8873
712-546-8875 (FAX)
email:   matrotzig@btbattys.com<mailto:matrotzig@btbattys.com>