Ancillary Probates? Why can't I use the homestate probate to clear up title issues

The spouses children, heirs or legatees of an individual who dies owning property in several states may be faced with having to have probate actions in each of those states.


A domiciliary probate (home state probate) is conducted in the state where the decedent resided at the time of death. Typically, a probate action is started in that state. The court appoints personal representative or executor. However, the home state probate court is generally powerless to convey property that is in another state. This may involve a real estate, oil and gas interests or property titled (such as vehicle and boats) in the non-residential home.


It all has to do with the jurisdiction that a Court may use. Generally, one state will not honor another state's court order to transfer property.


Procedures vary by state.

In Oklahoma, the process begins with filing a certified copy of the last will and testament, an order admitting the will to probate and an order distributing the estate from the domiciliary probate proceeding, or if the decedent died intestate, by attaching a duly certified copy of the
order appointing the personal representative and an order distributing estate from the domiciliary estate.

There are requirements that any Oklahoma creditors be notified of the ancillary proceeding unless they were previously notified in the home state probate. Heirs (those who may be entitled to inherit) and legatees (persons or organizations named in the will) must be given notice. If addresses of heirs or legatees are unknown there may be the need for publication. Publication is advisable to due to potential unknown creditors, heirs and legatees.

The statute presumes that this will be an expedited proceeding and a final hearing may be set no less than 20 days from the date of filing. Assuming there are no objections or irregularities, the Oklahoma property can be distributed pursuant to the order of distribution of the home state probate.
Obviously, this is an overview in the event that there are no creditor claims or challenges by heirs and legatees. If there are challenges the regular Oklahoma probate procedure applies.

No Home State Probate? Use Summary Probate

Occasionally, the decedent may have resided in another state and a probate was not necessary there. For example, the decedent may have owned property in another state in joint tenancy, had a beneficiary designation or held property in a trust, etc. Oklahoma also statutes also provide for a summary probate. A summary probate does not require a home state probate.
Estate planning is essential for individual owning property in multiple states to avoid the delays and complexities of multiple probates.

AFFIDAVIT OF HEIRSHIP: Oklahoma permits the filing of an Affidavit of Heirship. A company might accept this in lieu of a probate for purposes of placing royalties in pay status. However, this is generally not seen as a viable substitute for a probate. The statute requires:

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.This post is informational and should not be used to take or refrain from taking any particular course of action. This does not create an attorney client relationship or the acceptance of any case.

Thank you sir. This will help many people and heirs. Wish more would consider helping by putting information such as this. Thanks again.

Thank you for the informative article Richard.

Great info!!!