This is the last article in our series on mineral rights and their transfer after death.  The last post discussed many ways in which such interest may be disposed of upon the owner’s death.  Where the interest flows and to whom depends on how it’s titled and whether the decedent left a Will.  This post will dive into a commonly asked topic: Oklahoma Affidavit of Death and Heirship and Mineral Rights.

What is an affidavit of death and heirship for mineral rights in Oklahoma?

An affidavit of death and heirship is a step taken by the legislatures to alleviate some mineral rights transfer issues.  The affidavit is one of the ways to swiftly establish some form of title to a severed mineral right by an heir.

Oklahoma Statute Title 16, section 67 states that after the mineral owner dies, an heir can claim an interest through an Affidavit of Death and Heirship.  The heir may eventually acquire a valid and marketable title against other claimants after filing and waiting for a statutory period of ten (10) years. 16 O.S. § 67. 

An heir may file the affidavit to claim mineral rights interest regardless of whether the decedent left a Will.  However, the act of filing is only the start of a long wait period.  It gives the heir or the affiant a claim to the interest but not a clean title right away.  Because of this, the title does not become marketable or cloud-free until the ten (10) year period has passed.

How to file an affidavit of death and heirship for mineral rights in Oklahoma?

The affidavit of death and heirship for mineral rights must be filed with the office of the county clerk where the property is located.  But first, a correct and complete affidavit must be drafted and executed.

The affidavit must state whether the decedent died with or without a will.  If there is a will that was never probated, it must be attached to the affidavit.  Names of all heirs and their relationship to the decedent must be clearly stated.  The person making the affidavit must list their relationship with the decedent.  If unrelated to the decedent, then state that he has personal knowledge of the facts stated in the affidavit.

To adhere to the filing requirements and avoid future issues the affidavit must be complete.  Information that is necessary to make a valid heirship determination must be includedThis includes a copy of the decedent’s death certificate, marital history, name and date of death of all spouses, and list of all children.

Failure to include essential and complete facts in the affidavit may cost you time and money in the long run.  The worst-case scenario may arise if the affidavit is deemed insufficient causing you to file a new affidavit.  Resulting in the resetting of the ten (10) year statutory clock.

Affidavit of Death and Heirship instead of Probate

Affidavit of death and heirship is a quick way for the heir to claim mineral interest without going through the probate process. 

In Oklahoma, real property passing through a will or laws of intestacy must be probated to transfer title to heirs.  But there is an exception in the case of severed mineral rights. Heirs can file an affidavit with the county clerk where the property is located to claim such interest.  16 O.S. §67(A).

Although the Affidavit of Heirship seems like an easy fix instead of a more expensive probate administration, it has its drawbacks. 

Some oil companies may accept the affidavit as proof of your ownership and purchase a lease.  And, some may even pay royalties based on the affidavit.  This is typical where the royalties are small. 

However, most oil companies will refuse to pay royalties based solely on the affidavit unless ten (10) years have passed without contest.  This may be because an affiant (heir who filed the affidavit) must wait for a period of ten (10) years before the title becomes marketable and free of cloud.  There is a risk of future claims to the company from potential claimants or heirs.

After filing, the affiant cannot sell or transfer a marketable title during the ten (10) year period.  Additionally, if any party contests their right to the mineral interest there is a risk that the ten (10) year clock will reset.

In case the title is successfully contested during the ten (10) year period, an oil company can come after you and demand their money back.  Even if not contested, they may demand a probate of the estate after you went through the trouble of filing the affidavit.

Yes, an affidavit of heirship is cheaper and may help you avoid probate.  However, it may not be suitable for all mineral interests.  Especially if the royalties are large.  The time and money spent in the probate proceeding may very well help you prevent more expensive issues in the futureIf you are thinking about filing an affidavit of heirship to avoid probate consult with a real estate attorney.

OKC Real Estate Lawyer

Whether you are involved in a transactional matter or a mineral rights litigation, we are here to help.  Niroula Law will give your case the attention it deserves.  We help you navigate the legal avenues from start to finish.  If you are planning on executing an affidavit of death and heirship instead of probate, speak to a real estate attorney today.  Contact us online or by telephone to get in touch with a real estate law firm and speak to a real estate lawyer.