My fiance’s husband passed away 3 years ago and was the successor trustee on a revocable trust in Oklahoma. He and my fiance were in the process of a divorce, but it never completed, so they were still legally married. They had 4 kids, with three surviving today. His father is still alive and he had some half-siblings.
Years ago, these mineral rights produced royalties, but the wells were eventually depleted and we didn’t think much would come of it. When her husband passed away in Washington DC (where he had lived for about 9 months) he had no other assets and we didn’t see any need to go through probate. There was also not a subsequent successor trustee set up on the trust.
Recently, there was an offer made to purchase the mineral rights. In doing some research, we discovered that there is a proceeding to “pool” the mineral rights in that area. This, of course, re-opened this issue so that we can get her name on the trust as his surviving spouse.
Her deceased husband had turned his back on his family and left us with tens of thousands of dollars in unpaid child support and legal bills, and medical costs for their son who died of cancer. There seems to be a poetic justice in these mineral rights “making things right”.
We are trying to understand what we need to do next with the ultimate goal of my fiance securing the mineral rights so that when they start drilling she can collect royalties. We don’t know if we need to pursue probate in Washington DC (where he died), pursue it in Oklahoma, if we can simply get her on the trust as the surviving spouse, etc…
We are really in need of a “game plan” on where to start. Any help is appreciated!
Assuming the property was deeded into the trust, no probate is necessary. This would only be necessary if the property was still in the late husbands name. It is similar to a corporation. If property is deeded into a corporation, then the corporation owns it. If not, then the corporation doesn’t.
Based only on what you’ve said here, the fiancee needs to file a memorandum showing that she is in the successor trustee. this gets filed in the county where the minerals are located.
I don’t think you need to do anything in DC, but more facts may be necessary.
Now the trust is a contract, so she has to comply with the terms of the trust agreement. She doesn’t just get to keep the oil and gas revenue unless the trust provides.
Thanks for the quick reply! When you made the analogy to a property deeded to a corporation, the light bulb went off over my head as I have set up LLCs for business purposes.
The trust is pretty “bare bones” from what I can tell. It was set up in a hurry as the Settlor was dying of cancer and they wanted to get the mineral rights into a trust. This is also likely why they didn’t think to set up successor trustees.
There also appear to be no stipulations on how any income can be spent during either the Settlor or the Trustee. It seems to have been drafted primarily as a legal instrument to avoid probate and give the Trustee maximum flexibility. Of course, this is MY legal interpretation and I’m not a lawyer. We are looking to get an attorney posthaste so he/she can review the documents and let us know where we stand.
But just the fact that probate is likely unnecessary is music to my ears. I had zero desire to go down that road and hearing I might not have to made my day.
One question, though. Would my finance need to be physically present to file the memorandum in the county where the minerals are located? We live in the Houston area and the mineral rights are in western Oklahoma. I would think in this day and age we could do all of this via phone / zoom with any attorney in Oklahoma. We want to avoid using a local attorney in that area because of family issues and that area is interconnected like crazy.
The memorandum of trust can be prepared by an attorney ( or actually by a land professional). Then the original can be mailed, with recording fee, to the county clerks office where the land is located.
I just re-read your post. If no successor trustee was named, a court will have to name one.
It will be a simple court procedure. Easier and quicker than a probate.