My mother left everything to my only sibling and me when she died in 2000. This included a half interest in 160 acres of mineral rights in Divide County, ND (i.e. a quarter interest for me, and a quarter interest for my sister).
Unfortunately, neither my sister nor I still have a copy of her will. So we don't know how to prove that we inherited her mineral rights.
Is this likely to be a problem? If so, does anybody have any suggestions? We would like to lease our mineral rights.
Thanks!
Todd,
Possibly an attorney helped your mother draw up her will. If you can remember who the attorney was, he/she may have a copy of the will on file in their office. More than likely there is a copy on file somewhere. Good Luck.
Clint Liles
If the estate was probated, check with the courthouse. If the will is lost, your option is see an attorney and get yourmother's estate probated, per the laws of your state.
Joe
You are not necessarily out of luck even if you cannot find a copy of the will or prior probate. Many states' probate code allow you to present an affidavit stating what the will said. Also, if you and your sister were your mothers' only two heirs, you will inherit everything anyway.
'Also, if you and your sister were your mothers' only two heirs, you will inherit everything anyway.'
Good point Michael.
Clint Liles
Thank you everyone for your responses.
Just to clarify ... my sister and I already have inherited everything (50-50). Our only concern now is being able to prove to a potential lessor that we did in fact inherit the mineral rights.
Most states recognize an Affidavit of heirship in lieu of a deed. But to avoid complications, bringing up a deed would be best done by a title company. Otherwise, a landman could "run title" for you and see if the ownership is clear. When they don't have your affidavit on file, then a death certificate and affidavit of heirship normally would transfer the reservation of record. A landman could do this who works that courthouse and probably not cost you a great deal if you are patient and let them do the search while there on other business.
I suggest a simple title in the name of a simple family partnership though even though bringing up the title work costs money. A created family partnership would only have to pay taxes if income comes in and could readily be transferred from family member to family member.
Thanks for your suggestions, T L Shields!
Just so I'm clear, do you think that an Affidavit of Heirship plus a death certificate plus proof that mom once leased her 80 acres in Divide County, ND would probably be enough to interest a landman in leasing to us?
Todd, that is more than enough for a landman to start his own title check. The thing is, I doubt that you will be collecting any royalty with that. The lessee needs to pay the bonus to seal the deal but you are most likely to have to probate to receive royalty. It doesn't matter how much circumstancial evidence of ownership you gather if they are not already interested in leasing in your area. I think the best you could do other than getting the minerals in your name is to file a statement of claim and wait. You need the statement of claim , a lease or show use of the minerals every 20 years anyway, I think you will get the most milage out of a fresh statement of claim.
Thanks so much, r w!
Do you think an Affidavit of Heirship, in addition to a statement of claim, would be helpful?
Do you advise attaching a copy of my mother's last lease to the fresh statement of claim?
Also, it sounds like you're saying that I don't have to worry about probating until a well is drilled on my leased land? Is that correct? (A few months' delay in collecting royalties would be OK.)
Pardon the newbie questions :-)
An oil company or landman likely does find who actually owns the property (unless the title is clouded.) What they don't know is who inherited it. They would contact the heirs but that presumes they can locate you but often landmen are pretty good genealogists. Filing the affidavit would create that title continueity. As for leasing you, the landman would need to want to lease that land first, then they would contact you about leasing.
Unfortunately, too many companies have developed bad habits...blanket leasing anyone who is near the property often on the basis of bad titles. Now they are trying to fix those titles and, if the Fayetteville Shale play is any indicator, the courts are clogged with title suits. Chesapeake Energy was notorious for leasing anybody walking then trying to figure out if they really owned the land or not.
Making sure your title can be found and you personally can be located is your best defense.
I can give you an example of why title gets important in my own family. My grandfather left Colorado in 1939 and sold the surface to his brother. He kept ½ the mineral rights and only his name appeared on the deed that conveyed the reservation. In 1975 grandfather died. In 1980 grandmother died but in the interim she had signed a lease on that mineral. In 1980 when an oil company looked at the lease, they realized grandfathers signature was not on the lease. The "fix" was to sign that affidavit of heirship and no probate was done. Same for my father and uncle. They simply did the affidavit and checks were then sent to them.
My late brother (a banker), me (a geologist/appraiser), and my cousin (a CPA) realized the lack of clear ownership would be an issue someday, but dad and uncle didn't think us "young people" (we were all over 40 by then) knew what we were talking about. We literally had to wait until both died. The year my uncle passed away and both my aunt and mother were in agreement, we had to probate all of them...then created a family partnership. The check was then divided equally between my mother and aunt. (in reality each child had the rights to a portion, but our decision was for our mothers to benefit during their lifetime. It literally was the difference between my mother living in her own home until 4 days before her death and living in an apartment...and my aunt also lived in her own home up until the last 30 days of her life.)
Upon each passing, the checks are cut proportionally to the heirs, a return is filed with the IRS and the proper K forms are sent to each heir. This will never need done again. Ultimately, without such management, or something similar, the pie (which typically shrinks over time) gets cut into smaller and smaller slices and the paperwork gets unsurmountable.
Another word of caution. I mentioned my grandfather split the minerals with his brother. His brother's children inherited exactly the same amount of mineral rights as my father and uncle. There were 4 of them but they had an adjacent tract which doubled their mineral holdings. One one of the 4 retained their share. The other 3 sold. One admitted to me he sold his for $2500. I groaned and he confessed he didn't even think about calling me (even though he knew I was a geologist) Today, had he retained that interest, his share would be about 80% of that $2500 PER MONTH...and it is a very long term field with an additional 40 years of reserves.
Todd, a quick search of "statement of claim" shoud turn one up on the forums. My friend Joel has inserted pdf and word doc versions a few times I know.
todd said:
Thanks so much, r w!
Do you think an Affidavit of Heirship, in addition to a statement of claim, would be helpful?
Do you advise attaching a copy of my mother's last lease to the fresh statement of claim?
Also, it sounds like you're saying that I don't have to worry about probating until a well is drilled on my leased land? Is that correct? (A few months' delay in collecting royalties would be OK.)
Pardon the newbie questions :-)
After I complete the statement of claim and affidavit of heirship, should I send them both to the county recorder, or somewhere else?
r w kennedy said:
Todd, a quick search of "statement of claim" shoud turn one up on the forums. My friend Joel has inserted pdf and word doc versions a few times I know.
todd said:Thanks so much, r w!
Do you think an Affidavit of Heirship, in addition to a statement of claim, would be helpful?
Do you advise attaching a copy of my mother's last lease to the fresh statement of claim?
Also, it sounds like you're saying that I don't have to worry about probating until a well is drilled on my leased land? Is that correct? (A few months' delay in collecting royalties would be OK.)
Pardon the newbie questions :-)
Todd,
Both will need to be to be notarized and sent to Divide County Recorder with the fees for recording them. You could call to get the quote of price on those from the Recorder.
Here is the Divide County Recorder info:
Recorder- Penny Hagen; Address: Divide County Recorder - P.O. Box 68; Crosby, ND 58730; Phone: 701-965-6661.
Once they've been recorded, they will return both original copies to you, with their recorders stamp and file numbers.
If you and your sisters are Joint Tenants in common, on those minerals; only 1 statement of claim is needed. If you each own 50% of the net minerals on undivided gross acres, you will each need to file a Statement of Claim. Even if they are divided gross acres, you would each need to file a Statement of Claim.
Good Luck,
Susan
Todd,
Sorry if that all seems complicated, I would recommend you call the Recorder Penny, and verify that you have the exact forms necessary for you and your sisters situation.
Susan
A belated Thank You, Susan!
Yes, if they are the only two heirs specified in a Will, that is true, they will inherit. But if there is no Will or there is a Will but it is never filed in Probate Court, as might be the case here, then that states's laws of descent and distribution would apply, which determines who the Decedent's heirs-at-law are, which would include them but might include a surviving spouse, if any.
Michael J. Zwick said:
You are not necessarily out of luck even if you cannot find a copy of the will or prior probate. Many states' probate code allow you to present an affidavit stating what the will said. Also, if you and your sister were your mothers' only two heirs, you will inherit everything anyway.