my father passed away 2 years ago. in the past, we have rec’d very small checks for mineral rights Caddo County Section 1-8N-9W. recently we have rec’d offers for purchase. I feel we need to have the rights properly titled - if for nothing else, to enable my mother to cash the checks. my parents have a living trust that has enable easy transfer of other assets, but that does appear to be the case w mineral rights. oil company is requesting an Affidavit of Heirship. Before I go down that path - looking for confirmation, advice, etc.
Contact the operator of the wells that your mom is getting checks on and ask them what they require to get them into pay status for her. You can start with the affidavit of Heirship to get them into her name and then explore the trust issue. I am not an attorney, but I know of many living trusts that have mineral rights in them.
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Yes PO&G said the affidavit of Heirship is what is required; however, the form implies that it needs to be completed when someone hasn’t left a will - which isn’t the case with a Living Trust. So I’m confused by the requirement, and how to complete the form without paying an attorney or the trust organization. THoughts?
Sorry to hear of your troubles. Some companies are fine with a copy of the Will being attached to the AOH. Still others rely on Oklahoma’s Title Examination Standards Title 16 OS Sec 3.2.1 which states:
Comment 4: Title 16 O.S. § 67 does not address the effect on title of an unprobated will attached to the affidavit. Oklahoma cases have held that until a will is admitted to probate, it is wholly ineffectual to pass title to real property, including any mineral or leasehold interest, and a devisee has no right to enforce any provisions of said will. Oklahoma cases have also held that there is no time limit within which a petition for probate of a will must or can be filed. A will that has been probated in another jurisdiction but has not been probated in Oklahoma is ineffective to establish any interest or title in the persons claiming thereunder without proper Oklahoma proceedings. As a result, there is uncertainty regarding the legal effect of the attached will.
That being said, it is likely that a probate of the Will is necessary to clear up title. It is likely a “pour over” will which gifts the residue to the trust.
This post is not legal, tax or investment advice. Reading or responding to this post does not create an attorney/client relationship.
Winblad is on point. Ask the Operator if they will share with you the reason for the title requirement and the acceptable methods of satisfying the requirement. This will save you a great deal of time and allow you to focus your efforts.
I reached out to the operator and explained assets were managed by a living trust, to which they responded “the creation of a trust does not convey real property. As the interest are under his individual name, we would need a recorded conveyance from him to the trust prior to his death or a recorded Affidavit of Heirship as mentioned below.”
I confirmed that this Affidavit was needed, but when I rec’d the form, I became confused as the form implies that the deceased did not have a will which isn’t exactly the case, given the “pour over provision” of the trust.
Also tried to contact the Caddo County Clerk office who said they couldn’t provide legal (or any other guidance) but ultimately said that if that’s what operator requires then that’s what we’ll need to do. Just don’t know exactly how to do it, but I guess I’ll give it shot and see if my guesswork works.
It sounds like the operator will put your minerals into pay status based upon an affidavit of heirship. Keep in mind that if a different operator acquires the well, then you might be back at square 1.
A probate is the cleanest route in this circumstance.
This post is not legal, tax or investment advice. Reading or responding to this post does not create an attorney/client relationship.
Winblad offers you the practical solution providing what the operator will accept in this instance in order to establish an “on pay” status. Most AOH forms will have the statement of “No Will” since it is provided as a method of curing an intestate title issue. You are probably best off working with an attorney to get this issue corrected since it sounds like you may have had some missing parts of the estate planning process.
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