For a Lessee to lease and pay royalties is an Affidavit of Death & Heirship (ADH… unsure if that is normally what they are called in Oklahoma) sufficient to transfer title from one person to a sibling upon that person’s death? Versus there being a Probate done on the deceased? Say it’s a 100 acres of minerals. An ADH is commonly accepted in some states, need to know about Oklahoma. Do you think a Lessee could require a probate to either lease it or to pay royalties if they make a well?
It is totally up to the operator as to whether they will accept a PD&H (ADH) to pay royalties. It certainly is within the law for them to request a Probate as that is the only way you can get Marketable Title. Most will pay on smaller interests if the decedent has been dead for more than 10 years. Most companies will take a lease on an Affidavit, but paying royalties on the same is up to the Operator.
If the original owner was a resident of another state besides Oklahoma, many companies will require that a foreign probate be filed in the Oklahoma county before paying. As Todd, said, just depends upon the operator.
The title opinion to lease is often less rigorous than the title opinion to actually pay out the royalties since the dollar amounts are significantly higher. Usually done by completely different title attorneys.
All I can tell you is what our experience was several years ago. The oil company accepted (in Oklahoma) an Affidavit of Heirship to transfer payment of royalties to our parents four children but I did have to send them registered copies of the death certificates from California (County Coroners office) to the oil company. A few years later I found that our grandfather (who lived in and died in Oklahoma) has some mineral interests that we didn’t know about and the proceeds/royalties from those interests had been sitting in the Oklahoma Treasurer’s Office for years, unclaimed. The mineral interests themselves had been sold long before. In that case we had to get a lawyer in Oklahoma to probate our parents estate in Oklahoma with an Expedited (simple) Probate to get the State Treasurer to release the funds to us. This was because in California probate is not necessary if the person(s) have a family trust which automatically distributes property. However, Oklahoma does not accept a family trust so we had to do a probate in OK. Hope that helps. I think you need to just contact the oil company and ask them if an Affidavit is sufficient or if they require more documentation or a probate. If you do have to probate be sure you get a lawyer with experience in oil matters and has a good reputation. We had trouble because our lawyer did not have enough experience with mineral rights which ended up costing us time and more money. Of course, it’s not easy to handle these matters when you live in another state.
However, Oklahoma does not accept a family trust so we had to do a probate in OK.
Let me correct what may be an unintentional misstatement. Oklahoma does acknowledge and accept family trusts. But, like all states, the property has to have been deeded or conveyed into the Trust prior to the death of the decedent.
Two examples, Dad executes a will stating that all his property goes to the Dad Family Revocable Trust upon his death. Dad dies. Since Dad died with the property still in his name, a probate needs to be done to have the will acknowledged to be a valid will and the property is distributed to the Dad Family Revocable Trust. A second example, Dad has a lawyer prepare a Trust and deeds all his property in Oklahoma into the Trust prior to his death. In this instance, no probate is necessary because the Trust already owns the property. In the first example, Dad died with the property in his name. Probate needed. In the second example, the property was deeded to the Trustee of the Trust. No probate needed.
In Oklahoma most companies tend to require a probate if the property did not pass another way (trust, joint tenancy, transfer on death deed, etc). However, if significant sums are to be paid out, then most companies will require a probate.
I concur with Tim Dowd’s comment the Oklahoma recognizes trusts. but most out of state attorneys fail to deed the minerals into it.
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Most out of state lawyers don’t and in my experience a large number of in state lawyers don’t do it either.
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