For several reasons I want to sell my small interest in 12 and 1, 5N and 5W in Grady County, OK. Yes, I will take time and not take the first offer. My interest was inherited from my mother who died intestate but I do now have an affidavit o heirship. On this website I see different opinions as to the value of getting further documentation proving ownership, such as ancillary probate or summary probate. I’m thinking I ought to go ahead and get it. What say you all? And thanks to all who are so helpful here.
The affidavit of heirship is not sufficient for marketable title. However, if the well is producing, an oil company may rely on the affidavit without making you do a probate. But, if they do that, it is out of good will, not because they are legally obligated to.
If I were the attorney advising your buyer, I would tell them that an affidavit of heirship is the weakest form of title.
An affidavit in heirship does not create “marketable” title unless: 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.
Therefore, in Oklahoma most companies require a probate. They don’t want to pay an affidavit of heirship claimant only to discovery that he or she was not entitled to the funds–and therefore the company must required to pay the true owner. Even after 10 years you may be surprised to learn that a title examiner is not happy with your form.