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Oklahoma Probate for Out-of-State Mineral Interest Owners and Heirs
Frequently individuals on the Mineral Rights Forum have posts that involve issues concerning title or the transfer of ownership after death. The purpose of this paper is to provide some information regarding issues and common questions. This is not legal advice as your situation may require different actions.
Frequent Questions:
We had a probate in our home state; why must we probate in Oklahoma?
Why was the company willing to lease and pay a bonus but is now unwilling to pay royalties?
Why won’t the company accept an affidavit of heirship?
What if there has never been a probate?
What is the difference between a Summary and Ancillary Probate?
Will I have to travel to Oklahoma?
What is probate?
As it relates to a person who stands to inherit property, it is a process by which title to property is transferred from the deceased owner to his or her heirs or according to a Will.
We had a probate in our home state; why must we probate in Oklahoma?
Simply put, it has to do with jurisdiction. A court of one state does not have authority over real property (including mineral interest) in another. Therefore, a court outside of Oklahoma cannot award title. Only an Oklahoma Court can do that.
What if there was a trust?
A trust avoids probate only if property is transferred to the trustee prior to death. If an interest is titled in the name of the decedent, instead of a trust, then probate will be required. Typically, those with trusts also create a will. This will instructs the probate court to transfer assets to the trust.
Why was the company willing to lease and pay a bonus but is now unwilling to pay royalties?
It is not uncommon for a company to take certain risks in order to secure a lease because it provides it with valuable rights. However, if there is production a “division order analyst” will examine the title to the property. If there are defects, such as an unprobated estate, the analyst will place payment of royalties in suspense. This means that the monies will be held until the title issue is resolved.
Why won’t the company accept an affidavit of heirship?
In Oklahoma, an affidavit of heirship must meet five criteria in order to be deemed to provide “marketable title”.[i] Key amongst the requirements is that an affidavit must be on file for 10 years. Therefore, it is usually best to go forward with a probate if royalties are in suspense.
What does a probate cost?
There are several components that make up the expenses related to a probate. These are:
- Filing fees
- Publication Fees
- Postage
- Attorney fees
- Recording fees
Often attorneys are willing to probate mineral interests on a flat fee basis. That means the expenses listed above are rolled. Into one price.
What is Ancillary Probate?
Generally, this is available if there has already been a probate in another state. It requires certain documents from the original court. Once these are assembled, then the process is very quick.
What if there has never been a probate?
If there has not been a probate, generally a shortened “summary probate” procedure is used. It is available if:
- The decedent has been dead five or more years; or
- The decedent lived outside Oklahoma at his or her death; or
- The value of property within Oklahoma is valued at $200,000 or less.
What is the difference between a Summary and Ancillary Probate?
For the client, there is really no difference. The summary probate requires a slightly longer timeframe and requires slightly different publication requirements. In short, it is something that the attorney, as opposed to the client, handles.
Will I have to travel to Oklahoma?
While we would love to have you, the answer is no. It is extremely rare that anybody other than the attorney need attend a hearing. Paperwork can be handled through mail or email.
How long is the process?
Once the paperwork is signed and filed, the process can take as little as 30 days (for an ancillary probate) or about 75 days for a summary probate. These estimates may vary depending upon court availability.
What about Estate Taxes?
Oklahoma abolished its estate tax beginning January 1, 2010. For those who died prior to 2010, often a release can be obtained or the tax expired due to the lapse of time.
Federal estate taxes are rarely an issue since the taxable amount begins at relatively high levels.
[i] 17-O.S. §67(C) says: . In order to establish marketable title pursuant to this section:
- The affidavit or recital must state that the decedent died without a will, or if the decedent had a will, that the will was never probated in Oklahoma and a copy of the will is attached to the affidavit or recital, or if the will was probated that the severed mineral interest was omitted from the final decree of the decedent and a copy of the will and final decree is attached to the affidavit or recital;
- The affidavit or recital must list the names of the decedent’s heirs and their relationship to the decedent;
- The affidavit or recital must state that the maker is related to the decedent or otherwise has personal knowledge of the facts stated therein;
- The affidavit or the title transaction that contains the recital must have been recorded for at least ten (10) years in the office of the county clerk in the county in which the real property is located; and
- During the ten-year period following the recording of the affidavit or the title transaction that contains the recital, no instrument inconsistent with the heirship alleged in the affidavit or recital was filed in the office of the county clerk in the county in which the real property is located.
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