Affidavit of Heirship: What Does It Mean?
An Affidavit of Heirship is a legal document that describes the heirs of a deceased person. In essence, it is a sworn statement made by two witnesses describing the date and place of the death of the decedent; whether or not a valid Will exists; the names and addresses of the heirs and their relationship to the decedent, and any other information that may aid in the identification of heirs. An Affidavit of Heirship is a legal declaration that is accepted by the courts as evidence of heirship in Oklahoma and the surrounding states.
A properly executed Affidavit of Heirship is a valuable tool in establishing mineral ownership after some periods of ownership and/or operation have occurred . An owner of mineral rights in Oklahoma has a duty to inform the operator regarding the proper ownership. When declaring ownership, a recorded Affidavit of Heirship may be the only evidence of the present ownership; therefore, it is incumbent on the operator to ascertain what the current status of ownership is. However, the Affidavit may not be the best evidence of the current status.
In Oklahoma the Affidavit of Heirship will not put an end to the chain of title; it does not purport to say what the rights of the heirs of an ancestor are. It simply attempts to assist in locating the heirs of the deceased. Clinton v. Hester, 64 P.2d 383 (Okla. 1937).
Oklahoma Mineral Rights Basics
According to the Oklahoma Supreme Court, "[m]inerals are a part of the land, . . . and royalty carved out of them is an interest in real estate." Waite v. Meyer, 604 P.2d 1112, 1114 (Okla. 1979). A property with mineral interests standing above the surface ownership is referred to as a "mineral estate," while the real estate excluding the minerals is called a "surface estate." Together, the two estates being "present in the same tract of land, can be disposed of separately by the owner . . . and the severance is not, of itself, improper;" instead, it is a right to which the property owner is "entitled and for which he has a right to compensation in the nature of 1/8 royalties. . . ." Weathers v. Skelly Oil Co., 476 P.2d 753, 755 (Okla. 1970).
Unlike the surface estate, the mineral estate is generally a right to explore and produce resources from below the surface, i.e. to extract the minerals from the property. See Grand River Dam Auth. v. Cross, 107 P.2d 557, 560 (Okla. 1940). If the mineral estate is severed from the surface estate, the owner of the mineral estate retains, subject to the rights of the surface tenant and collateral to the surface in the superior estate, the right to all minerals produced, regardless of whether the owner personally developed the lease of the mineral rights. Weathers, 476 P.2d at 756. The surface estate owner has the right to enter the land and exercise reasonable use of it for the purposes for which the property was acquired without providing notice to or getting permission from the mineral estate holder. Weathers, 476 P.2d at 752. But the surface estate owner does not have a right to commence development of the minerals or to receive compensation or royalties from any resource produced. Cross, 107 P.2d at 558.
Oklahoma’s oil and gas industry has been a staple of its economy since drilling first began in the state in the early 20th century. According to the United States Energy Information Administration, in 2019 Oklahoma produced 130.5 million barrels of crude oil and 4,524 million cubic feet of natural gas, over two-thirds of which was produced from horizontal wells. Oklahoma’s mineral rights are in high demand because the leases available to extract oil or gas from one’s land can be quite valuable and that value is constantly evolving as new extraction technologies continue to be employed. Mineral rights holders often find themselves in contract disputes with those who want to buy their mineral rights and the attorney fees necessary to defend such claims can add up quickly. Additionally, even though the mineral rights may belong to the person on record with the county clerk’s office, the average person is unlikely to know who to reach out to obtain them. A properly sworn affidavit of heirship will prevent the decedent’s rights from becoming lost in the shuffle if the decedent holds oil, gas or mineral rights.
How to Obtain Oklahoma Mineral Rights
Processes for Securing Oklahoma Mineral Rights
As stated above, title to an Oklahoma mineral interest or royalty interest must be obtained from the current mineral rights owner. A deed will do this. If an owner has died, his or her devisees or heirs can get a deed from the personal representative of the estate or the one that controls the estate (the successor personal representative), if there is one, with the affidavit of heirship of the decedent’s heirs. If there is no personal representative or successor personal representative, the inapplicable small estate procedures can apply to transfer the property, but that procedure is not guaranteed.
If an owner did not leave a will that specifies who takes the decedent’s mineral interest, and there is no probate pending, the Affidavit Of Heirship For Oklahoma Mineral Interest, Royalty Interest, Leasehold, Production Proceeds, And Bonus Payments ("Affidavit Of Heirship") can be used to transfer the property directly to the heirs. This affidavit does not take effect until three months have gone by without a probate being filed or without publication of notice on the pending probate estate. The Affidavit Of Heirship identifies the decedent, states that he or she owned a mineral interest at the time of his or her death, states that the Affiant has the legal authority to determine heirs, and sets forth the name of the Affiant and the names and addresses of the devolution of the mineral interest to the heirs of the decedent (all the Surface Owners). The Affidavit Of Heirship, once filed in the County Clerk’s office in Oklahoma County or the county that the property is located, serves as prima facie evidence of the devolution, which means that if the Affidavit Of Heirship is ever challenged, the Affidavit Of Heirship must be disproved by a preponderance of the evidence, which is less than beyond a reasonable doubt. Due to the length of time that can pass from when an Affidavit Of Heirship is filed to when it is ever challenged (if it ever is), title to the transferred property should be clear.
Oklahoma Mineral Rights: Filling Out an Affidavit of Heirship
This return of service to the parent is a result of fulfillment of the service of process requirements of Title 58 O.S. § 336. This is the process by which an Affidavit of Heirship is filed of record in accordance with the laws of the State of Oklahoma and notice by publication under Title 12 O.S. § 2004 (c). It is imperative that all mineral owners proceed, pursuant to the Oklahoma statutes, in order to obtain marketable title if a probate proceeding is not held.
(A) The affiant’s name. (B) The affiant’s address. (C) The affiant’s telephone number. (D) The affiant’s email address. (E) The affiant affirms that the statements of the affiant in the affidavit are true and correct. (F) The affiant describes the decedent. The affiant may provide information regarding the decedent’s address, the decedent’s birthdate and age if the affiant personally knew the decedent. (G) In Oklahoma law , it is important that the decedent’s death date be provided so the date of death can be verified. (H) The affiant provides the decedent’s last known address at the time of death. (I) The affiant provides the decedent’s place of death. (J) The affiant provides information about the wife and children. (K) The affiant provides information about the decedent’s surviving spouse if the spouse is not the decedent’s widow or widower. (L) The affiant provides information regarding heirs of the decedent. Oklahoma law requires that the heirship information be current as of the date of the death of the decedent. The purpose of this requirement is to avoid the filing of an affidavit of heirship that contains outdated information regarding heirs of the decedent. (M) The affiant signs the Affidavit of Heirship and provides the affiant’s current address, telephone number and email address. (N) The affiant provides information about the mineral interests that belonged to the decedent.
The Legal Issues Surrounding Affidavit of Heirship
Affidavits of heirship transfer real property to the heirs of a decedent. However, since Oklahoma law requires mineral rights to be expressly conveyed and believed to be non-devisable, the practice of recording an affidavit of heirship to convey interest in mineral rights to heirs assumes interest actually existed to convey. Even though Oklahoma laws have deemed uncompensated mineral rights nondevisable and mineral rights applicable to partition and descedent’s interest as devisable, some courts have recently sided with law requiring a record act conveyance in order to affect an interest in the leasehold to which the minerals are subject. An affidavit of heirship is not a record act conveyance and therefore does not pass the ownership of an Oklahoma oil and gas lease from a decedent to the owner’s heirs and thus may fail to properly transfer the ownership of the mineral interest.
In Smith v. The Estate of Carr, 2003 OK 104, 82 P.3d 144, the Oklahoma Supreme Court held the only proper means by which a party can enforce an oil and gas lease to which he or she has an undivided interest is by becoming a joint owner or lessee by having the consent and joinder of the other owners who hold an undivided interest. Id. ¶ 19. In Smith, the court held the law requires an owner of an undivided mineral interest to join all co-tenants in a lease to which he or she seeks an equitable remedy. Id. However, even if the owners of the remaining undivided interests in a lease refuse to join the lease, the other owners may nonetheless compel reformation or rescission of leases which fall short of conveying a mineral estate through either a constructive trust theory or estoppel theories. Id.
Based on the prevailing law, a conflict arises when an affidavit of heirship attempts to convey mineral rights from the deceased owner. Thus, the claim that an affidavit of heirship is a sufficient means to transfer mineral rights needs to be avoided in order to prevent litigation with unleased grantees of mineral rights.
Oklahoma Affidavit of Heirship FAQs
Some Frequently Asked Questions and Answers About an Affidavit of Heirship for Oklahoma Mineral rights
What happens if there are children and when does probate start? Generally, it is best for the children to follow the probate procedure process and have the devolution of title done properly. If there are no children, then the transaction gets much more complicated. Note that this calendar year (2015) is the first year in Oklahoma that the Oklahoma probate attorney is required to report to the Oklahoma Department of Mines statistics on the use of the Affidavit in the probate process. If my step brother gets 1/2, do my step brothers and step sisters get the rest as well? The deceased child takes nothing. The deceaseds’ descended children do not divide up the property with their step-siblings. We have mineral rights that are both producing and non-producing. Do we need to file two affidavits of heirship? No, just one affidavit of heirship is needed for both non-producing and producing lands . Will oil and gas companies accept an affidavit of heirship? This issue is getting more interest, so we are going to be updating our chart on this issue on mineralrightspaid.com We utilize this site and update it every month with industry issues. Many oil and gas companies accept it, they just need to be the right title researcher(s) in the land department. Generally, company geologists do not understand the affidavit of heirship except to be told not to utilize it. You need a land department employee who will be creative and do what is best to find the mineral owner. That’s that person’s job, to find you. Will this make me be responsible for running a title search on the mineral interest to determine the other heirs of the decedent? No. You are not required to issue a full title opinion on the mineral interest of the deceased. Regardless, the probate attorney will find other owners of the mineral rights that you do not know about and they will draft the affidavit, contact all other heirs, and have the decedent’s will located.