Small estate Affidavit or Heirship?

Oklahoma Mineral Rights Garvin County, OK
1

I moved this to the Garvin county group hoping I would get another opinion.

Hello, I need some advise please. My mother passed away 2 years with no assets whatsoever. She did have a will but nothing was mentioned in it regarding any mineral rights. We recently found out she had mineral rights in Garvin County Oklahoma. We were told we needed an affidavit of Heirship to get them put into our name legally. I went to the Court house and got the information on what she owned. My attorney sent us a Affidavit of small estate. Can someone tell me what the difference is?? Also, which county do we file it in? The county she died in, our the county that the land is in? Thanks so much for any help!!!

2

Susan, file it with the County Clerk of the county where the minerals are located. If the mineral acreage is leased now or in the future and drilling commences make sure the Affidavit will be sufficient proof of clear title for the lease operator to pay royalties. Leasing does not require much proof but the payment of royalties is subject to the opinion of a title attorney.

3

My opinion (but I’m not an attorney.)

An affidavit of heirship is commonly used by landmen when leasing property. An affidavit of heirship is a statement of facts. Who owned the property, when they passed, marital status, children, etc. As far as I know, the only statutes that cover it is Oklahoma §16. 16-67 section C covers the references that make it marketable title.

http://webserver1.lsb.state.ok.us/OK_Statutes/CompleteTitles/os16.rtf

C. In order to establish marketable title pursuant to this section:

1. 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;

2. The affidavit or recital must list the names of the decedent’s heirs and their relationship to the decedent;

3. The affidavit or recital must state that the maker is related to the decedent or otherwise has personal knowledge of the facts stated therein;

4. 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

5. 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.

I agree with part of Michael Hutchison’s statement below. “Leasing does not require much proof but the payment of royalties is subject to the opinion of a title attorney.”

However this part I have issues with. “If the mineral acreage is leased now or in the future and drilling commences make sure the Affidavit will be sufficient proof of clear title for the lease operator to pay royalties”

I’m not sure how you can make sure. Many times, the landman trying to lease the property will tell you about anything to get you to sign a lease. A title opinion is usually not completed for months after the well is drilled so getting reassurance that the AoH is ok will be difficult to obtain.

It is not hard to find instances of testimony on this board where they were leased with an AoH and then payment has been held in suspense when a well was drilled.

My advice:

Negotiate and obtain a good lease using the AoH. Take the bonus money and hire an attorney to do a summary probate. Select an attorney knowledgably with both oil and gas experience and estate experience. The cost should be about $3000 for both attorney fees and court costs.

Then make 100% sure that you take measures to pass it on to your heirs and not burden them with the same issue. Place in a trust, create a Transfer on death deed (and make sure they know how to execute it), etc.

I have some samples of some AoH documents that I have picked up from county records if you would like to see them.

4

Rick, I wasn't sure if there was a difference between an AoI and what she was calling Affidavit of Small Estate although trying to clarify it ahead of time didn't do me much good come to think about it.

5

Thanks so much Guys, This really helps! The attorney sent a letter that says "attached is the AOH, but the title says Small estate Affidavit. That confused me...Thanks again for all your answers!!!

6

Mike,

I’m not sure what she has. I have not seen one titled like that.

7

Susan,

A key piece to my statement

"Select an attorney knowledgably with both oil and gas experience and estate experience. "

I don’t think your attorney fits that criteria. I could be wrong. I just pulled up copies of the ones I have on file. The titles are:

Proof of Death, Heirship, etc Affidavit of Death and Heirship Affidavit of Heirship

8

Oh Lord....She is a family friend...I think we might need a new friend. :-)

9

She may be a good attorney, but it may be outside her area of practice.

You also need to make sure the probate has a "catch all" in it. Then if mineral rights are found later that were not included, it will automatically cover it.

10

This may help

http://www.anadarko.com/SiteCollectionDocuments/PDF/RoyaltyOwners/Affidavit%20of%20Heirship.pdf

11

This looks great! Thanks so much Rick!

12

I can't answer most of your questions but I know the ownership of the royalty needs to be recorded in the county in which the royalty exist. We lost some of the royalty (a tiny bit) because mother died in Garvin Co. and the attorney for her estate recorded everything in Garvin where her will was probated. The royalty was in Stephens Co.. Now after the oil company who had a small well on it has changed hands twice since then says they can find no record that she had the royalty to transfer to dad and therefore not to us heirs of his. Dad received the tiny check from the little production that came in for several years after mom's death until they changed hand that second time. Then his checks were cut off. It's such a small amount of royalty (2 1/2 acres) to be split between us 4 heirs and the well is such a dud that we didn't worry about it. But now if they decide to drill horizonal and down to the Woodford of deeper and especially if they would decide to drill multiple wells it could add up. Better to get it recorded right to start with. Hope this helps! Best Wishes!

13

Got my paperwork filed in the right county :-) Now we watch and wait? Happy Labor Day