Grandad Died Owning Minerals in Oklahoma: Now What?

In the event of the death of an individual owning Oklahoma mineral rights, certain steps must be taken to transfer ownership to those entitled to inherit the property. This issue may come to the forefront shortly after death in the event the mineral rights are producing royalty income at the time of the owner’s death. In other cases, it may be years or even decades before family members learn that a long-lost relative owned oil and gas property in Oklahoma. This later scenario is not uncommon when the minerals have not been producing for many years (or may have never produced) and they simply slipped through the cracks at the time of the decedent’s death. New exploration activity may result in a petroleum landman contacting the heirs of the deceased owner in an effort to lease the right to drill a well on the property. In order to continue to receive royalty payments previously going to the deceased owner or to take advantage of opportunities to lease the deceased owner’s interest, it is necessary to establish record title in the name of those entitled to the property. The appropriate way to proceed is dependent on the unique factual situation at hand, but what follows is a brief description of how title to Oklahoma mineral rights can be transferred out of the name of a deceased owner.

1. Affidavit of Death and Heirship. This is a document recorded in the land records that creates a rebuttable presumption of marketable title to severed minerals in a decedent’s heirs. Title becomes “marketable” if no contrary instruments are recorded in the 10 years after the recording of the Affidavit. Some companies will lease from a decedent’s heirs based on an unrebutted Affidavit alone, but some will not (it can depend on the amount of money involved). Also, most well operators will not pay royalties on production to heirs based on an Affidavit alone until it has been of record for 10 years or more with no contrary instruments having been recorded during that time. The Affidavit itself is relatively inexpensive and quick to prepare and record, but won’t always satisfy a pending title requirement.

2. Probate. Oklahoma has a “summary” probate procedure that can be used in most cases if the only purpose of the probate is to transfer title to minerals. The procedure can be completed in 60-90 days and in most cases will not require the petitioner (the person asking to transfer title) to make any trips to court if they are represented by a lawyer. In cases that do not qualify for the “summary” probate procedure, another slightly more lengthy probate procedure can be used. While more costly than an Affidavit of Death and Heirship, a probate proceeding achieves a more definitive and final result and may be the best option if the title requirement at issue cannot be satisfied by an Affidavit of Death and Heirship.

3. Quiet Title Lawsuit/Judicial Determination of Death and Heirship. This procedure be used only if the decedent died intestate (that is, without a Will) one or more years ago, but this method is usually not preferred over a probate absent special circumstances.

4. Affidavit of Surviving Joint Tenant. When a person dies owning property in joint tenancy with another, title vests fully in the surviving joint tenant at the time of the decedent’s death. However, to establish clear title, the surviving joint tenant (or, if the surviving joint tenant is also deceased, the Personal Representative of the surviving joint tenant’s estate) must file an Affidavit of Surviving Joint Tenant. The procedure is relatively simple, but certain formalities must be followed for the Affidavit to accomplish its objective. An original or certified copy of the death certificate of the first joint tenant to die will be needed.

An attorney experienced in these matters can evaluate the specific circumstances involved and recommend which of the above-described methods is the appropriate way to proceed to clear title to the interests of a deceased owner of Oklahoma mineral rights.