Probate


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In Oklahoma mineral such as Oil and Gas are considered real estate.  Often individuals would sell the surface rights to their property but keep the mineral rights.  They did so because they realized that someday those property interests may become valuable.  Sometimes, many generations later oil and gas development occurs, and the decedents need to prove up their inheritance through probate to get paid. Probate is a way to get the royalties paid to you.

What exactly is Probate?

Probate is a legal process where a court determines that someone is deceased and who will receive his or her property after it is administered.

Is Probate Difficult?

A probate case can be very simple with the right attorney.  Basically, the client provides information about the person who died, who survived him or her, what property they owned and whether there were any creditors.  The attorney prepares the paperwork for the client to review and sign.

Do I have to Appear in Probate Court?

No, except in rare cases.  Often the client can receive and return various items by mail.  The attorney can handle any appearances.  The exception would be if the case becomes contested.

What if my Relative Didn’t Have a Will?

A probate case can be handled if the person did or did not have a Will.  If there was no Will, the distributions are determined by Oklahoma intestacy statutes.

How Long Does a Probate Take to Complete?

Often a “summary probate procedure” can be used.  This is available if any of the following apply: The person didn’t live in Oklahoma at the time of death; or The person has been dead more than 5 years; or The estate is valued at $200,000 or less.

In these cases, the time-frame is usually 60-80 days depending upon the availability of the court.  Otherwise, a standard probate may be required which can take six or more months to complete.

What if the Estate has been Probated in Another State?  What is an Ancillary Probate?

If the mineral rights are in Oklahoma, another state’s court does not have authority (jurisdiction) to transfer them.  Therefore, and Oklahoma probate is required, even if, there was a probate in another state.  Often an Ancillary Probate procedure can be used which shortens the timeline to about 50 days.  Procedure is available if the home state probate case is concluded and certain orders were filed there.[1]

How Much Does a Probate Cost?

Most mineral probate cases qualify for a flat rate of $3,400 which includes court costs, publication fees, mailing copying and attorney’s fees.  If there are multiple counties where minerals are located, there are additional recording fees of about $30 per county.

I Filed an Affidavit of Heirship, why do I Need a Probate?

In Oklahoma an Affidavit of Heirship can create title in the heirs.  However, there are many requirements, the biggest stumbling block  but only after it has been recorded at least ten years with the County Clerk were the minerals are located and during that 10-year period not instrument inconsistent with affidavit has been filed of record.  Therefore, few companies paying royalties are willing to rely upon an Affidavit of Heirship unless 10 years have passed.

What does Royalty Payments in Suspense or Payments on Hold Mean?

This means that the royalties or other payments have been calculated and set aside until the title of the person entitled to receive them has been established.  Often this means a probate.  A company may use a Division Order Analyst who determines what “title requirements” are needed to put royalties into “pay status”. 

My or My Relative’s Funds are held by the Oklahoma Treasurer’s Unclaimed Property Division or listed in the Mineral Owners Escrow Account.  How do I claim these?

Oklahoma State Treasurer’s Office/Unclaimed Property (405) 521-4275 or online www.ok.gov/treasurer/Unclaimed_Property/index.html.

They will inform you if a probate or an affidavit is sufficient to claim the funds.

What if I have more than one Estates, can they be joined in a single joint administration case?

Sometimes there is a need to take care of two or more estates in order to get minerals into the name of the rightful heirs.  While this may seem like a daunting task, it can often be accomplished in one case.  For example, if grandfather owned mineral and died, then his daughter died.  Neither had a probate done for their estates.  Oklahoma law allows multiple estates to be administered in one case.    

In this case the living grandchildren would inherit through their line.

What are the Advantages of Jointly Administered Probate Cases?

  • Court Costs:  The filing fee for a single or joint probate case is the same.
  • Publication Costs:  Probate cases require publication.  A joint probate is about ½ the cost of filing two separate probate cases.

[1] The requirement would be order admitting the will to probate and an order distributing the estate from the home state probate proceeding, or if the decedent died intestate, by attaching a duly certified copy of the order appointing the personal representative and an order distributing estate from the home state probate estate.  58 O.S. § 677.

Mom or Dad Signed a Transfer on Death Deed, How Does This Work?

 

First Question:  If all the persons signing the Transfer on Deed are now deceased keep reading.  If not Click Here

You have only 9 months after the last signor died to file an acceptance affidavit.  If you don’t complete the affidavit and file it within that time, then the normal probate rules apply.  Luckily, the form is fairly easy to complete and you will need just three things:

Do I pay taxes to make the transfer?

  Oklahoma does not have an Estate or Inheritance Tax. Federal Estate taxes for someone who died in 2018 don’t apply unless the total estate was more than $11 Million.  This does not trigger income tax if you are inheriting from a family member.  There are not filing taxes just a small filing fee.  Real estate does have an annual property tax.

What if there is a lien or mortgage, will I become liable for that?

  An existing lien or mortgage will continue on the property but you will not become personally responsible for it.  If you sell the property the lien holder will get paid from the proceeds.  You can also pay off the lien.

Things you need to claim property under a Transfer on Death Deed:

  1. A copy of the Transfer on Death Deed.  You do not have to have the original because you only need it to obtain the following information:

    1. The date it was signed;

    2. The date it was filed with the county clerk;

    3. The Book and Page number that the county clerk assigned to it; and

    4. The legal description of the property.

  2.  certified copy of the Death Certificate.  State of Oklahoma Death Certificate request.

  3. An Affidavit of Grantee Beneficiary 

  4. A check to County Clerk for Filing.  (usually $17-$21)

 

 

 

After the Affidavit of Grantee Beneficiary is completed it must be filed in the county where the property is located with a certified copy of the death certificate.

Searching for Oklahoma Land Records for Probate, Quiet Title or Research?

Click Here to Search Counties

 

unlocking digital assets after death

Executors Fight to Get Access to E-mails

John Ajemain, Forty-Six  died in a bicycle accident.  He had no Will or Trust.  His brother and sister became the Personal Representatives (PRs) of his estate.  They sought access to John’s “digital assets” in particular Yahoo e-mail account to review for other assets such as bank accounts and liabilities.  Yahoo denied access and a court battle ensued.

How Yahoo Justified Refusal

Yahoo refused  relied upon the two points.  First they claimed that the Stored Communications Act “SCA”(18 USC Sec. 2701) prevented such disclosure.  Yahoo also claimed that the terms of service agreement governing use of the Yahoo account allowed them to withhold or even destroy the information.

Stored Communication Act

The Court examined the SCA and found that the act was established to prevent “overzealous” law enforcement from gaining access to private accounts.  However, the SCA provides an exception to the nondisclosure to “with the lawful consent of the originator”.  Yahoo’s position was that the PRs “cannot lawfully consent on behalf of the decedent, regardless of the estate’s property interest in the e-mail messages”.  In Yahoo’s view, only a living person had the authority to grant the consent.

Luckily, the court did not agree with Yahoo on this point.  After an exhaustive examination of statutory construction, the Court held that the SCA could not be used to prevent disclosure to the PRs.  It found that the PRs had the authority to provide “lawful consent” and that access to the records was necessary because Yahoo’s refusal “would significantly curtail the ability of the personal representatives to perform their duties”.  The court stated that nothing in the SCA “would suggest that lawful consent precludes consent by a personal representative on a decedent’s behalf.”

 

Terms of Service Agreement, Yahoo’s Delete Button

Even though the Court threw out the SCA defense, it still wasn’t sure what to do the “Terms of Service Agreement”.  According to Yahoo, that the Agreement trumps the PR’s property interest in the records.  The Agreement says:

You agree that Yahoo, in its sole discretion, may terminate your password, account…and remove and discard any Content…for any reason”.  The Court was not certain that this provision was enforceable or whether the essentials for a valid contract existed.  In short, there wasn’t sufficient evidence to show that there was a “meeting of the minds” with regard to Yahoo’s Agreement.  The Supreme Court sent the matter back to the Trial Court to take evidence on the matter.

What this Means to You

Unfortunately, the Court did provide a definitive answer to the question of whether the records will ultimately be handed over to the PRs.  This will play itself out in the courts below.  But there are things that you may consider.  What is frightening is how hard Yahoo is fighting to keep John’s records from his PR.  Yahoo is not alone in their position.  This area of the law is evolving.  While there are no definite answers the following are a few good ideas:

Digital Power of Attorney:  Your power of attorney should provide your agent with the authority to access your accounts.  This is increasingly necessary as many banks, financial products and other transactions occur digitally.  Failure to have access may be disruptive in the event of a disability.

Digital Powers in Will:  It is a good idea to include digital authorities in your Will which grants your Personal Representative the authority to access accounts.

Password Access:  The powers stated above are useless if one does not have access to the passwords.  Use a service like LastPass and DocuBank to keep track of your passwords.

Paper Copies:  The Yahoo case shows why it is important to maintain some paper copies of your important records.  Perhaps it is a good idea print out some statements and keep them with your other papers.

Want to read the Case?  Click Here

 

 

 

 

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