When you were young your parents found ways to protect and provide for you. As your parents age they increasingly need your care. You need answers including legal realities. This article and the audio content describes the type of information you need to receive. It also provides practical tips to create open communication.
Dynamics of Communicating with the “Silent Generation”
People born before 1946 are known as the “Silent Generation”. Their world was shaped by the Great Depression, WWII, The Cold War and the Civil Rights Movement. They are often described as less open with personal issues including health and finances. They value simple concepts and rarely view themselves of wealthy regardless of their net worth. “Waste not want not” means much to them. Listen Here
There are times that an Oil and Gas Mineral Deed may not be currently accurate. This may be due to the change of the owner’s name or address. Or the owner died and the heirs are wanting to have the interest transferred to them. The name on filed mineral deed cannot be changed, so how can this be fixed? A supplemental filing can correct in inaccurate name or address.
In the case of updating owner name and/or address this can be done with a simple affidavit. A different process is needed when a mineral owner dies. Scroll down to the headline that most fits your situation.
This discussion is for State of Oklahoma. Similar modulations may be available in other states.
You are the Mineral Owner but your Name or Address Has Changed from the Deed
You may have trouble asserting your rights or receiving information if your former name or address is listed on a deed, court order or other document is no longer correct. This may occur because :
The address is wrong, you moved or moved or wish to use a Post Office Box
Your name changed because of a
Legal Name Change.
In addition to contacting any operators or parties paying royalties you may want to file an AFFIDAVIT AND NOTICE with the land records with the updated information.
Why do I need to Make Sure My Information is Up-To-Date with County Records?
The County land records in Oklahoma are the only official location where oil companies, landmen, and others search to check title on property. If you are not listed there you might not receive notice of important issues that may affect your mineral rights. For instance, you may miss an opportunity to choose a higher royalty in a forced pooling.
What is Needed for the Affidavit?
The affidavit should have your current name and address. It should briefly explain why the item is being filed. The legal description where the minerals are located should be listed. Also if possible a reference to a previously filed document. Click here to request assistance.
Can I Search the Oklahoma County Records? Can I Search them Online?
You can also search most counties for records online. However, most counties provide a limited capability to search older documents. Online records search.
County records are open for inspection by the public at the County Courthouses. Contact the County Clerk’s office to determine their hours and limitations to access.
How do I Add or Remove Someone’s Name from a Mineral Deed
Adding Someone to a Mineral Deed
Often a mineral owner will want to change the deed or ownership by adding somebody else’s name to the title. If you are the owner of minerals and want to add an additional owner, you can do so by a simple quit claim deed. While the process is simple, the tax and other legal ramifications may make adding somebody else on a mineral deed ill-advised. There is often a better solution which protect you and avoids probate. There are simple documents that can be prepared to insure that your minerals pass to those you choose. Estate Planning for Mineral Interests
Removing Someone From a Deed:
If alive: That person would need need to sign a new deed that conveys their interest away. This can have adverse tax and other legal consequences.
If deceased: If the individual has died, an examination of the title will dictate whether and affidavit can resolve the issue or if a probate is necessary.
How to Change Name on a Oil and Gas Mineral Deed after the Death of Owner
If a mineral owner died a review review the title to determine whether he or she deeded the property into a trust or created a Transfer on Death Deed. If the deceased owned the property in joint tenancy or as a life estate. an affidavit and death certificate can resolve the title issue.
What If Mineral Owner Died, Is a Last Will Required to Probate?
No, if probate does not require that the owner had a Will. When there is no Will, the heirs inherit according to the intestacy statutes. For more information see Probate.
Are Mineral Interest Registries a Good Idea?
A private company that offers to register your minerals in their has no official sanction. While they may offer other services, those interested in your minerals will go the county clerk for those records. Many believe that registry services are a waste of money.
Why hire an Oklahoma Attorney to Prepare your Deed or Instrument?
Avoid mistakes with an Oklahoma Attorney prepared deed, mortgages, affidavits, transfer on death deeds and other documents prepared on a flat fee basis in Oklahoma.
Deeds to Revocable Trusts
Once a trust is created it must be funded. In the case of real estate this means that the person creating the trust transfers his or her real estate into a trust. Merely listing the property in the schedule of assets on a trust is not sufficient to accomplish funding. An actual deed must be prepared and filed in the county where the land is located. Trusts, if properly funding avoid probate.
Mineral Deeds and Mineral Deeds to Trusts
In Oklahoma minerals are considered to an interest in reals estate. To transfer minerals to another person or to a trust this is done by filing a deed with the legal description where the property is located. Many owners neglect to transfer their minerals into a trust.
Quit Claim Deed
A quick claim deed transfers all of the grantor’s interest in property to a grantee. However, the grantor does not provide any warranty to title to the property. If it turns out that the person had no title there is usually little restitution for the grantee. These are typically used in family gifting situations.
A person issuing Warranty Deed represent that he or she is owns the property free and clear of liens, claims mortgages, etc. Also that he or she has full power to convey the property and will defend the title thereto against all persons who may lawfully claim the same, and the covenants and warranty shall be obligatory and binding upon any such grantor, his heirs and personal representatives as if written at length in such deed.
This is a deed to two or more individuals for the same piece of land. Once the first dies the survivor files an affidavit of surviving joint tenant and take the property free of the deceased person’s claims. It also does not pass through the deceased person’s estate. Once the survivor dies, then it is subject to probate unless some estate planning has been accomplished. This is generally a very poor substitute for estate planning. See more information. Click Here for Help.
Affidavit of Surviving Joint Tenant
Once an person with title to the joint tenancy property dies, the survivor can file an affidavit of surviving joint tenant. This is a document that has certain information about the property, the date the original deed was filed, and the date of death of the decedent. An official death certificate is attached. Once this is filed, the deceased owner’s interest is removed. Click Here for Help.
The owner of real estate executes a Transfer on Death Deed and files it in the county where the property is located. When the owner dies the beneficiary files a Transfer on Death Affidavit and receives the same title that the previous owner had. There are drawbacks to this estate planning method. While it avoids probate there may be unintended consequences. When used property this avoids probate. Click to start form.
Transfer on Death Beneficiary Affidavit
If the beneficiary does not file the property paperwork within 9 months of the owner’s death, the property becomes part of the owner’s estate and subject to probate. The form includes the facts about the original filing of the Transfer on Death Deed along with facts and official records about the previous owner’s death. Click Here for Help.
Is Deed Preparation by an Out-of-State Attorney the Unauthorized Practice of Law in Oklahoma?
In Oklahoma the preparation of a deed for a lay person is considered practice of law. See Samara, 1986 OK 55 at ¶ 9. “Activities that constitute the unauthorized practice of law if performed by suspended or disbarred attorneys include assisting lay-persons in preparing pleadings;4 giving legal advice to lay-persons; writing contracts or selecting and filling out proper deed forms for lay-persons.” This appears to apply to attorneys and not individuals or companies who are parties to the transaction. Generally it is best for out-of-state attorneys to avoid the risk by retaining an Oklahoma licensed attorney to prepare real estate deeds for Oklahoma property.
Oklahoma Counties Served
Adair Alfalfa Atoka Beaver Beckham Blaine Bryan Caddo Canadian Carter Cherokee Choctaw Cimarron Cleveland Coal Comanche Cotton Craig Creek Custer Delaware Dewey Ellis Garfield Garvin Grady
Grant Greer Harmon Harper Haskell Hughes Jackson Jefferson Johnston Kay Kingfisher Kiowa Latimer Le Flore Lincoln Logan Love McClain McCurtain McIntosh Major Marshall Mayes Murray Muskogee Noble
Limited scope representation: 1. Quality of Legal Work: We guarantee you will receive competent legal services based upon settled legal issues and standards of professionalism, and the highest ethical standards. We cannot guarantee any specific results.
Limited representation. The representation is limited to providing you with certain legal forms, instructions on how to complete them, instructions regarding witnesses where necessary and what to do after signing. This does agreement does not contemplate comprehensive estate planning, tax, real estate,
3 Forms provided: You understand that creation of forms is one step and that forms must be signed. In some cases they also must be signed before a witness and/or a notary public. Witness and notary services are not provided unless a separate agreement is reached. We are also not responsible to determine whether you printed or executed the form.
Conflict of Interest: The firm may withdraw from representation at any time if it believes that a conflict of interest exists. If you know of any conflict of interest during the course of our representation of you, please notify us promptly to discuss the need, if any, for independent counsel. You hereby specifically waive any and all conflicts of interests which you know of but do not disclose. You have asked me to assist you both in planning your estate and in preparing the necessary estate planning documents. Although it is customary for a married or domestic couple to employ the same attorney to assist them in such matters, the Rules of Professional Conduct of the State Bar of Oklahma require me to inform you in writing of the following potential conflicts of interest:
A married may have conflicting interests concerning their property. If, as you request, I act as the attorney for both of you for your estate planning, I must try to balance all factors and cannot, therefore, act as an advocate for either of you. This balancing could end up favoring one of you to the detriment of the other.
To complete your estate planning, I must necessarily obtain confidential information from each of you. However, as between the two of you, I cannot keep that information confidential since I am representing both of you. Of course, anything either of you discuss with me is privileged from disclosure to third parties.
I may make recommendations which could affect each of your interest in your assets both during your lifetimes, after the first death and after the death of the survivor. These determinations could potentially affect income, property division and support provisions in the event of divorce.
Based on the foregoing, you must decide whether or not you want me to represent both of you in your estate planning. You are each, of course, welcome to have your own counsel for any part or all of the matters in which I would be acting; in addition, either of you may, at any time, forbid me from being involved in any way on behalf of the other.
Process for Handling Disputes: You have the right to terminate our services at any time by notifying us in writing. You will be responsible to pay our fees for services performed through the date we receive such notice. If any dispute arises as to fees, costs or performance that we cannot resolve between us, the dispute shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of the American Arbitration Association. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. You and we agree these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive the right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.
Estate Planning Challenges During Corona Virus Pandemic Overcome
Estate plans Generally require three steps:
Normally this requires meetings with an attorney to design the plan. It can also involve the signing at the lawyer’s office with two witnesses and notary.
While this is preferred method of creating an Estate Plan, these steps can all be handled remotely and still be legally binding estate plan.
1. Planning During Coronavirus Outbreak
My office is observing social distancing practices. Meetings are held on the telephone or through video conferencing. The online questionnaires are also useful. You will receive counseling regarding what documents and strategies are best in your circumstance. The plan will include one or more of the following:
For many this is one of the most important documents to have in place.
This document allows somebody to act on your behalf if you become unable to do so for yourself due to incapacity, illness, hospitalization. It is also useful if you are unable to act for yourself if you are confined or physically unable to do so.
A revocable trust can address many situations and avoid probate and add protections for your family. Trusts are popular because they are simple and they work. Also onerous probate procedures are avoided.
HIPAA Medical Privacy Release
This allows loved ones or anybody else you choose to have access to your medical information.
2. Signing Safely During Pandemic
We have developed a couple of ways to have your documents signed. Some documents do not require a witness or notary.
Many documents can be signed in the comfort of your own home without any witnesses or notaries.
We are also witnessing documents curbside at our office so that our clients never leave their vehicle.
If you are unable to leave your home or facility a remote notary or mobile notary may be used. This can be done at a window with no contact.
Once the documents are properly executed, you will have instructions regarding your next steps. This may involve providing copies of documents to certain individuals such as doctors and family members. If a trust is created you may need to contact various companies to inform them that a trust was set up.
After the Crisis
Once the crisis has passed, many may want to revise their plan. Some may wish to re-sign certain documents before witnesses to take advantage of special statutes.
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.
What do I need to do to Get Started?
This starts with a telephone call or by completing an interview. Click here for Interview. We’ll visit to determine what is needed. In a typical case there is no need to travel to my office or the court. We can communicate through email and mail to deal with the necessary paperwork. Usually, there are only a few documents that the client will need to review and sign.
Why is Probate Required for Oil and Gas?
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.
Is Probate Difficult?
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?
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?
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.
Is there a Statute of Limitations to File Probate in Oklahoma?
Oklahoma does not have a Statute of Limitations to file a probate. However, doing so promptly can avoid monies being paid to a state’s unclaimed property fund.
How Much Does a Probate Cost?
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?
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?
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
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?
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
What are the Advantages of Jointly Administered Probate
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 almost ½ the cost of filing two separate probate cases.
 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. §
One problem facing many mineral owners is how to pass property to loved ones without the time, expense and frustration of going through the probate court. One solution is a simple “Oklahoma Mineral and Royalty Trust”. Your oil and gas interests are owned by the Trust that you manage. You lease, sell, buy just as before. The income belongs to you. While you are living there is not separate tax return. You choose who will receive the property once you pass. The property is conveyed to your family or other beneficiaries without the intervention of the probate court.
Questions? Click Here
What you need to get started:
-List of legal descriptions (or deeds) of your properties.
-List of who
you want to be in charge after you’re gone.
-List of the people or charities you want to inherit.
-Inexpensive to Set Up
-Simple to Manage, just like you do now
-Avoids Probate Court and Judges
Separate Tax Return (During Your Life)
-You Stay in Control (Sell
or Lease Interests)
-You choose who manages
-Stepped-up Tax Basis
-Works with Leased or Un-leased Minerals
-Beneficiaries problems (divorce, bankruptcy, judgments, creditors) won’t impact your ownership
Also available for Mineral Owners who reside outside of Oklahoma.
If I have a Trust Do I Need to Transfer Oil and Gas Mineral Interests Into It?
If you have an existing trust, one of the keys is make sure that it is funded. In the case of oil and gas this means deeding that interest to the Trust or Trustee. The deed must be filed in the county where the minerals are located. It is also advisable to file another document that identifies the trust, the trustee and provides additional information. This is a memorandum certificate or affidavit of trust.
This company is building a 186-mile pipeline through Gavin, Stephens, Coal, Pontotoc and Murray Counties Oklahoma. Oklahoma
You have Constitutional Rights when Eminent Domain is Claimed
They must pay:
Value of what is taken.
Value to diminished value to the remainder of the property
Expect the Easement to be Forever!
As with most proposed easements there are onerous terms that can
prevent the owner from building ponds, changing grade, planting trees or
As in all such cases, if an agreement is reached, there will be a one-time payment and no opportunity to re-negotiate the terms.
Don’t be Afraid to Say “NO” to the Initial Offer, or any offer.
a similar pipeline project, another company paid a range from $180 to
$745 per rod with an average of a 50 foot easement. The price obtained
depended upon the nature of the property and the negotiation skills of
Permanent means permanent.
An easement may prevent you from constructing or the loss of: