The “Quick Fix” That Takes 10 Years: Affidavits of Heirship in Oklahoma
If you’ve inherited mineral interests in Oklahoma, you’ve likely been told you have two choices: a formal probate or an Affidavit of Heirship (AOH). While the AOH is often seen as the path of least resistance, it’s important to understand the “10-year cloud” it places on your title and why it isn’t always a permanent solution.
It is best not to view AOH as a final step. In reality, it is more of a placeholder.
1. The 10-Year Marketability Rule
Under Oklahoma law (16 O.S. § 67), a severed mineral interest transferred via an Affidavit of Heirship does not become “marketable” until it has been of record for ten (10) years.
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The Catch: During those ten years, the title is technically “unmarketable.” If you try to sell your minerals, a sophisticated buyer will likely “haircut” your price or refuse to close until a probate is completed.
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No Shield Against Probate: It is vital to remember that filing an AOH does not prevent a later probate. If a family member or a creditor decides to open a probate case years later, that court action will supersede whatever was written in your affidavit.
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Small Interests: When there are interests with little to no current economic value and AOH may be a good choice to assert the claim.
2. The “Mirror Will” Exception
One of the biggest hurdles with an AOH is convincing a Division Order Analyst at the oil company that the affidavit is accurate. Analysts are naturally skeptical because they fear a “hidden” will might exist.
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A Practical Tip: If the decedent actually had a Will, but it mirrors exactly what would have happened under the laws of intestacy (meaning the Will gives the minerals to the same people who would have inherited them if there were no Will), the oil company might be more “comfortable.”
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While the Will is technically ineffectual until probated, showing the analyst a copy that matches your affidavit can sometimes be the “nudge” they need to release payments from suspense. It provides a level of comfort that the “right” people are being paid.
3. Why Royalties End Up in “Suspense”
An oil company might accept an AOH to sign a lease just to secure drilling rights. However, their risk tolerance drops once production starts and real money is on the line.
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It is common for an heir to sign a lease based on an affidavit, only to have their checks put into “suspense” (a holding account) once the well begins producing.
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The company’s title attorney will often issue a requirement stating that royalties won’t be released until a Final Decree of Probate is filed to “clean” the title.
4. When is an AOH “Enough”?
An AOH can be a great tool if the dollar amounts are very small or if you are simply trying to get a seat at the table for a pooling hearing. But if you want a clean, sellable, and “payable” title immediately, a Summary Probate (which often takes 60–90 days) is the more robust route.
The “Beacon” Effect: Why an AOH is Vital for Leasing and Pooling
While we discuss the drawbacks of an AOH regarding “marketable title,” it is still a powerful tool for one specific reason: It puts you on the map.
1. Getting Your Seat at the Table
If minerals are still in the name of a deceased great-grandparent, a landman searching the county records won’t know you exist. If an oil company wants to drill a well, they will search the records to find who to lease.
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The Record Owner: Without an AOH, the landman only sees the deceased ancestor.
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The Result: They may list the interest as “Address Unknown” or “Unlocatable” in a Pooling Application. If you aren’t found, you lose the opportunity to negotiate your lease terms or choose your pooling election.
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The AOH Solution: Filing an AOH puts your name and address in the county clerk’s cross-index. This ensures that when a landman does a “runsheet,” you are the one who gets the certified mail, the lease offer, and the bonus check.
2. The Pooling Benefit
In Oklahoma, the Corporation Commission requires operators to make a “diligent effort” to find mineral owners before a pooling hearing.
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By filing an AOH, you make yourself “findable.”
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This gives you the legal right to receive notice of the pooling. Once notified, you can choose between different royalty and bonus options (e.g., a $1,000 bonus at a 3/16th royalty vs. a $0 bonus at a 1/4th royalty). Without that AOH on file, the operator might choose the “lowest” option for you by default if they can’t find you.
3. It’s a “First Step,” Not a “Last Step”
Think of the AOH as your entry ticket. It may get you the lease bonus and ensures you are included in the development of the unit. However, as production begins and the “Division Order” (the document that triggers royalty payments) is issued, that is when the oil company may shift gears and ask for a probate to clear the 10-year cloud discussed earlier.
Notice: Informational only. No attorney-client relationship is formed by this post. I am an Oklahoma-licensed attorney, but this is not legal advice. Do not share confidential facts in this public space..