My mother passed away this year. She had mineral rights in New Mexico which she was a resident of at the time of her death. She had a will as well as TODD on her rights to be transferred to myself and my brother. Which has been filed in Lea County. ,New Mexico. One of the oil companies has the lease is requesting an ancillary probate. Is this necessary??
Ancillary probate is usually done for nonresidents who owned NM property as they file probate in another state. You need to consult a NM estate attorney to determine whether the filings are adequate under NM law.
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In New Mexico a TODD it is effective immediately upon death. Much like a beneficiary on a bank account. So it boils down to what an oil company will accept.
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I’m not attorney (graduated from law school) and this isn’t legal advice. Please consult with a NM attorney. If you need references, I have several I can send.
Here’s what I’ll say. If your mother’s estate would be inherited the same way in both the will & the laws of intestacy of NM then you don’t need to go through the ancillary probate process. Basically if you and your brother would inherit these interests the same way by the will or if she died intestate then why spend the money on an ancillary probate.
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Often these points are not understood by the particular individual (such as owner relations or D.O. analyst) at the oil company handling the title transfer. He may not be aware of changes to state law or the difference between probate and ancillary probate. So the title question may need to get up to the head of division orders or the legal department. You can ask for the reason why the recorded TODD is not acceptable. If they require probate which you do not otherwise need to file in NM, then your attorney will need to review and discuss with company.
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The above description was the situation that I was in (Property in New Mexico, deceased owner lived in TX). The TODD was worded nearly identical to the deceased’s will. The oil company immediately accepted the TODD, ancillary probate was not requested by the oil company.
My son and his became heirs to his grandmother’s estate, due to his father dying (intestate, he was not involved in their lives) prior his mother’s passing. His family lived in Texas. He was contacted by Spur Energy informing him of the property he inherited in Eddy County, but has yet to find a Will probated or a trust for his grandmother. Spur Energy is also saying he needs to do an ancillary probate. So can you share under the circumstances what his next step should be and share the names of some NM lawyers you would recommend?
Thank.you. We have an attorney. I will contact the oil.company again. I am amazed,how difficult they can be. And I thought dealing with life insurance was difficult.
In some states there may be the need for an affidavit with a death certificate filed with a form referencing the TODD & legal description. I don’t know about NM, but in Oklahoma there is a 9 month time limit to file the acceptance paperwork. Visit with a NM atty. This post is not legal, tax or investment advice. Reading or responding to this post does not create an attorney/client relationship.
I’m a fan of Scott Morgan in Albuquerque NM.
In cutting to the chase, you need to consult with an experienced NM probate attorney to determine what actually needs to be done.
Thank you. We have done just that.
I think in general oil companies are getting pickier about this. My mom passed in 1995, and we’ve had several leases pay us on just seeing a copy of her will… her estate was not large enough to require probate in CA. (mineral rights are in ND). One of the companies (that leased to us in the past with no probate)… now will not pay us until we complete either an affidavit (two copies by non-relatives - and there is nobody left alive with the knowledge required, who could complete these)… or via probate… so we are working with a ND attorney to figure out what we have to do to complete probate in ND.
None of these details probably apply to you, since it is a different state, but I think that we will be seeing more of this kind of thing in the future… with oil companies requiring better, more complete title.
Seems like an atty is a good idea at this point in time… and sooner is probably better. The attorney that drew up my mom’s will (in the 70s) is long passed, and the firm has gone through 2-3 merger/acquisitions and locating the original (never probated) will is choosing to be challenging.
You are comparing two different standards. The landman who leases on behalf of the oil company will sometimes base this on tracing heirs to get 100% of minerals under lease. However, when the chain of title is reviewed by the attorneys who issue a drilling title opinion, they will note the gaps in deed records (failure to establish clear legal) for some heirs and require that the title be cleared before royalties are paid. This is to ensure that the oil company does not suffer losses by paying royalties to Heir A and then have Heir B appear and demand payment. A non-probated will might have left the minerals to Son A and not to Daughter B. After some point in time, it will be too late to file the will and the minerals will pass under real property intestacy statutes to both A and B.
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