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Affidavit of Heirship – An Alternative to Probate?

An Affidavit of Heirship is a sworn statement that can be used by heirs as an alternative way to transfer property and establish ownership when the original owner dies intestate or without a will. Affidavit of Heirships allow for heirs to take possession of the estate without going through probate. The Affidavit of Heirship outlines the deceased person’s family history and the identity of heirs. It is then filed in the public records in the county where the decedent’s real property is located. An Affidavit of Heirship can be useful to establish ownership of mineral interests; however, it is important to note that an Affidavit of Heirship is not a formal adjudication of who inherits the decedent’s property upon death. An Affidavit of Heirship only creates a rebuttable presumption that the facts in the Affidavit are correct versus a judicial determination which conclusively determines heirs of an estate.

When do you use an Affidavit of Heirship?

An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. An Affidavit of Heirship can be an appropriate alternative for some, but a probate proceeding is usually the safer alternative to establish a link in the chain of title when dealing with real property. However, when establishing ownership of a mineral interest, Affidavits of Heirships can be very useful. Title to mineral interests can be established with an Affidavit of Heirship and will usually be sufficient for a company to sign a lease with you or to release payments.  However, this will not vest you with ownership of the property for up to ten years. 

What is included in an Affidavit of Heirship?

An Affidavit of Heirship outlines the deceased person’s family history and the identity of the heirs. The Affidavit should be signed by two disinterested witnesses who are knowledgeable about the deceased and his or her family history, but cannot benefit from the estate financially. Each disinterested witness must swear under oath as to specific information about the deceased including the following:

  • They knew the decedent.
  • The decedent did not owe any debts.
  • The true identity of the family members and heirs.
  • The person died on a certain date in a certain place.
  • The witness will not gain financially from the estate.

The affidavit must state whether or not a decedent has died testate or intestate (with or without a will). If the decedent died testate, the affidavit must state whether the will has been probated in Oklahoma. If the will has not been probated, a copy of the will must be recorded with the affidavit. If the will has been probated, but the severed mineral interest was omitted from the final decree, a copy of the final decree and the will must be filed with the affidavit of heirship. After being filed of record for at least ten years, an affidavit of heirship may pass marketable title, so long as the affidavit meets the statutory requirements and no other document was filed which contradicts the heirship provided in the affidavit.

Limitations and risks associated with Affidavits of Heirship

Because an Affidavit of Heirship is not a formal adjudication of who inherits the decedent’s property upon death, there are risks with establishing property ownership using an Affidavit of Heirship. An Affidavit of Heirship does not transfer title to real property. Once it has been on file for ten years though, the filed an Affidavit of Heirship becomes evidence of the facts contained in it about the property. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.

This means an Affidavit of Heirship cannot permanently establish the heirs of the individual who died without a will until the expiration of the ten year period. Upon the ten year mark, there is a clean transfer of title. Until then, a risk exists that ownership by the heirs will not be recognized by third parties such as purchasers, banks and title companies. It is also important to remember that an omitted heir or creditor of the decedent can challenge the ownership claim and claim an interest in the property owned by the decedent at any time.

An Affidavit of Heirship can be an appropriate alternative for some, but a probate proceeding is usually the safer alternative to establish a link in the chain of title when dealing with real property. However, when establishing ownership of a mineral interest, Affidavits of Heirships can be very useful.

Establishing Mineral Interest Ownership

Title to mineral interests can be established with an Affidavit of Heirship and will usually be sufficient for a company to sign a lease with you or to release payments.  However, this will not vest you with ownership of the property for up to ten years. After being filed of record for at least ten years, an affidavit of heirship may pass marketable title, so long as the affidavit meets the statutory requirements and no other document was filed which contradicts the heirship provided in the affidavit.

A party relying on an affidavit of heirship should do so with an awareness that the claim to ownership could be challenged at any time during the ten year period before title completely vest. Most likely, large mineral estates should never be distributed via affidavits of heirship. There are several situations where an an Affidavit of Heirship could fail, even if it goes unchallenged ten-year statutory period. For example, scenarios that involve property rights which cannot be taken without proper statutory notice and parties who were not given a fair opportunity to claim their property interest could present issues for situations in which an Affidavit of Heirship was used. Until properly accomplished notice happens, the period for challenging distribution of an estate via affidavit of heirship will theoretically never expire. 

Contact the attorney at Skillern Law Firm, PLLC today at (918) 805-2511 or contact@skillernlaw.com to discuss if an Affidavit of Heirship is the right avenue for your to pursue to establish ownership to property or minerals.

Reasons to Choose Going to Probate

Law: Gavel, books, wood

As an estate planning attorney, most of my clients are meeting with me to help avoid probate as much as possible. I have written previous posts all about how to avoid probate. However, sometimes, probate can be beneficial in certain circumstances.

A lot of estates go through probate, which is the court process to distribute assets and pay off debts when someone has passed. Unless there was planning ahead, when most people die where they leave behind real property and assets, their estate will typically go through the probate process. A Personal Representative will be appointed, and the Will will be filed with the court. If there is no will, the assets will be distributed through the state’s “will” – which is called intestate.

If you are a beneficiary of the estate, you may be surprised by the long, drawn-out court procedure which you are at the mercy of. In Oklahoma, a typical probate now lasts around 4-6 months unless it is contested or if selling real estate is involved (which can prolong the process). However, the probate proceeding serves several purposes and once you understand them, it can make it easier to accept the waiting period.

Once the will is validated, the next step in the probate process is to appoint an executor whose responsibility will be to collect the estate’s assets, appraise the assets value, pay creditors, file taxes (if necessary) and finally, distribute the property to the beneficiaries or heirs according to the Will or the state statutes. What is beneficial about Probate is that is a court-monitored proceeding in which the Personal Representative is not only supervised, but he or she must comply with specific procedures and legal requirements. For estates where there may not be a trustworthy person to take control, this is a huge benefit. Even for estates where everyone is honest, having a court oversee everything makes it to where there cannot even be the appearance of impropriety. The court won’t allow dishonorable or unethical conduct by personal representatives/executors.

There are more benefits to probate, though. Personal Representatives are required to provide accountings, unless waived by all the beneficiaries/heirs. The court requires all of the beneficaries’ names, ages and residences, and all the beneficiaries are legally required notice of the court proceedings and any and all court dates. Probate also allows any person interested in the estate to contest the Will.

One note about contesting a Will should be made, however. A beneficiary or heir can contest a Will for reasons which include: 1) mental incapacity of the decedent to make a will, 2) duress, 3) fraud, 4) undue influence, and 5) any other reasons questioning the validity of the will. Beneficiaries and heirs cannot contest based solely on that they do not like what the Will says, because will-makers are allowed to make a will that includes their wishes, but they can be contested based on that the will-maker was not in the right mind to make a Will.

For more information regarding the probate process and how it can protect the rights of beneficiaries, contact our attorney at the Skillern Law Firm, PLLC.

SCOTUS

The Supreme Court of the United States’ (SCOTUS) October session started yesterday, October 3rd. I was looking forward to this term, since there are a lot of interesting and important cases coming up on the Court’s docket. There are 48 cases on the Court’s docket thus far. There are, however, plenty of important cases being petitioned to be taken by the court. One of the most newsworthy is the ObamaCare lawsuits that are petitioning to be heard in front of the SCOTUS. So far, the case has not said whether or not it would be willing to take that case.

I have to say, I love listening to oral arguments. Last year, the Supreme Court started posting their oral arguments of the week each Friday on their website. I would suggest you check them out, if you are so interested, here: http://www.supremecourt.gov.  This was a big deal for the Supreme Court. The (mostly conservative) Justices have always disliked media in courtrooms, even disallowing cameras in lower courts (re: the Prop 8 California gay-marriage case). So, when the Court started releasing oral arguments the week they were argued, I was estatic! In the past, they have released important cases’ oral arguments the day they were released, but the rest of the lesser-known cases’ arguments were not released until after the term was up.  It’s nice to be able to listen to them the week they are argued.

Anyways, for more information on the Court’s new term, read updates, and get analysis on the Court’s case, check out my favorite Supreme Court blog, http://www.scotusblog.com.

Also, if you are interested to read oral arguments from past Supreme Court terms, check out http://www.oyez.org.

Check out other posts at Tulsa Estate Planning Blog!

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