decedent or otherwise has personal knowledge of the facts stated; 4. Have been recorded for at least ten (10) years in the county clerk’s office where the real property (and thus the severed minerals) is located; and 5. During that ten-year period, no instrument inconsistent with the heirship alleged in the affidavit or recital has been filed of record in that county. 20 Oklahoma Bar Association Title Examination Standards (particularly Standard 3.2 and the dedicated Standard 3.2.1) emphasize that while affidavits generally cannot substitute for probate or estate administration (except as expressly allowed under Section 67 for severed minerals), they create a rebuttable presumption of truth under Sections 82 and 83 regarding the facts stated as to severed minerals. Special caution applies when an un-probated will is attached: Oklahoma case law (e.g., Yeldell v. Moore , 1954 OK 260, 275 P.2d 281) holds that an un-probated will is ineffectual to pass title to real property or minerals until admitted to probate in Oklahoma; foreign probates without Oklahoma ancillary proceedings are similarly ineffective. Thus, if a will exists, probate is strongly recommended to avoid uncertainty. 21 This procedure promotes marketability for severed mineral interests by allowing reliance on long-recorded affidavits that remain unchallenged, reducing the need for full probate in many cases. The Title Examination Standards—nevertheless— strongly recommend probate or judicial determination of heirship during the ten-year ripening period for maximum certainty. 22 However, as demonstrated next, an oil and gas title lawyer requiring an administration of the estate or a judicial determination of death and heirship during the ten (10) year period before the title becomes marketable—may inadvertently be exposing the client to liability under the PRSA for improperly suspending royalty payments. Affidavit of Heirship Regarding Severed Mineral Interests of Record for Less Than Ten Years: Stated another way, it may be said that title
claimed under an affidavit of heirship regarding a severed mineral interest of record for ten (10) or more years is conclusively marketable under Section 67 of the Simplification of Land Titles Act. However, title under the same affidavit of record for less than ten (10) years is presumptively marketable under Sections 82 and 83 of the Act. 23 The statutory framework, therefore, creates two approaches for determining marketable title, as to severed mineral interests, for purposes of paying royalty under the PRSA. The conservative approach is for the examiner to require a probate or a judicial determination of death and heirship. But does this approach really justify suspending royalty payments? Comment 4 to Oklahoma Title Standards § 3.2 suggests the conservative approach is not warranted in such cases, specifically stating: Before the affidavit . . . has been of record for ten years, it is not uncommon for the title examiner to recommend to the party paying royalty owners to consider assuming the business risk of waiving the requirements of marketable title, which might include a probate administration, or judicial determination of death and heirship, and assume the business risk of relying upon the affidavit called for in 16 O.S. § 67. Furthermore, the Probate Code requires the payment of debts ( i.e. , royalty) owed to a person claiming to be the decedent’s successor (in a severed mineral interest) pursuant to an affidavit of death and heirship under the Simplification of Land Titles Act. 24 Small Estate Affidavit: The Oklahoma Probate Code provides a simplified, affidavit-based
20 16 O.S. § 67. 21 Title Examination Standards § 3.2 (D). 22 Id. at (D)(4).
23 See e.g., 58 O.S. §393(D) (Pursuant to Sections 82 and 83 of Title 16 of the Oklahoma Statutes, there shall be a rebuttable presumption that the facts stated in the recorded affidavit are true as they relate to the severed mineral interest, the death of the decedent, and the relationships, family history and heirship stated therein.) (emphasis added). 24 58 O.S. §393(D).
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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