Affidavits of Death and Heirship – Statutory Requirements for Marketability
By: Jordan D. Volino, Esq. and J. David Hampton, B.A., J.D.
During the recent flurry of leasing and drilling in the SCOOP and STACK areas, title and curative measures are moving at a rapid pace. One of the most used curative measures to quickly establish some form of title detailing heirship is the Affidavit of Death and Heirship. In 1999, the Oklahoma Legislature enacted 16 O.S. § 67 to be used as a vehicle to establish marketable title for severed mineral interests. Under 16 O.S. § 67, the statute provides that an owner of a severed mineral interest in Oklahoma may be able to claim marketable title through an Affidavit of Death and Heirship recorded properly according to 16 O.S. § 82 and 83. But, in order to be able to claim a marketable interest-free from a cloud on title, the Affidavit must satisfy Subpart (c) of Section 67.
Section 67(c) recites:
In order to establish marketable title pursuant to this section:
- The affidavit or recital must state that the decedent died without a will, or if the decedent had a will, that the will was never probated in Oklahoma and a copy of the will is attached to the affidavit or recital, or if the will was probated that the severed mineral interest was omitted from the final decree of the decedent and a copy of the will and final decree is attached to the affidavit or recital;
- The affidavit or recital must list the names of the decedent’s heirs and their relationship to the decedent;
- The affidavit or recital must state that the maker is related to the decedent or otherwise has personal knowledge of the facts stated therein;
- The affidavit or the title transaction that contains the recital must have been recorded for at least 10 years in the office of the county clerk in the county in which the real property is located; and
- During the 10-year period following the recording of the affidavit or the title transaction that contains the recital, no instrument inconsistent with the heirship alleged in the affidavit or recital was filed in the office of the county clerk in the county in which the real property is located.
In addition, the Oklahoma Bar Association Title Examination Standards, Section 3.2.D states certain additional requirements to the Affidavit are necessary to establish marketability of title. Title Standard 3.2.D.2 suggests that the Affidavit should contain sufficient factual information to make a valid determination of heirship of a decedent. Such information includes the date of death of the decedent, a copy of the death certificate, the marital history of the decedent, names and dates of the death of all spouses, a listing of all children of the decedent including any adopted or pretermitted children, the identity of the other parent of all children of the decedent, the date of death of any predeceased children, and the identity of the deceased child’s spouse and issue, if any. Title Standard 3.2.D.2 also states that during the 10-year period required by 16 O.S. § 67, if an affidavit fails to include factual information necessary to make a proper determination of heirship, the title examiner should call for a new Affidavit that contains the additional facts necessary for a proper determination of heirship. If a new or corrected Affidavit is filed, the statutory 10-year period would run from the date of recordation of the new or corrected Affidavit.
The Title Standard also states that the statute is unclear as to the reoccurring situation in which unprobated wills are attached to the Affidavit, and whether title is to pass to heirs by intestacy or to the devisees under the attached will. In such an instance, it is wise to seek out an experienced attorney to review the Affidavit and purported will. The Title Standard describes that until such time as the will is admitted to probate or administered during a summary administration, its attachment to the Affidavit is unsuccessful to pass title to real property or minerals. This statute, combined with the Title Standard has proven to be problematic to title examiners and landmen alike. Due to the detailed requirements of the 16 O.S. § 67 and the additional factors that the Title Examination Standards compels, it seems that very few recorded Affidavits of Death and Heirship can actually meet all of the requirements.
To conclude, when analyzing title to be prepared for a drilling opinion, division order, or ownership report, be cautious in your review of Affidavits of Death and Heirship to determine title. Although such Affidavits are useful and simplistic in nature, incomplete or sparse Affidavits may require additional curative such as a quiet title or a probate proceeding to obtain marketable title. If there are any other topics/issues you would like to discuss with the energy community, or myself, please mention your ideas and thoughts in the comment section.
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Jordan D. Volino is an attorney at Hampton and Milligan practicing in Oklahoma City, Oklahoma, who specializes in mineral title examination, oil and gas law, property law, as well as federal and Indian title and leasing. Jordan is a member of the Oklahoma Bar Association and the Oklahoma City Association of Professional Landmen. Jordan also is a published scholar, national champion in energy negotiations, and frequently lectures over Oklahoma oil and gas matters.
Adjunct Professor J. David Hampton joined the College of Law faculty in 2008 and the Price College of Business faculty in 2015. Professor Hampton teaches Mineral Title Examination and Real Property Law. After graduating from the University of Oklahoma College of Law in 1980, he founded Hampton and Milligan, a 30-year-old Oklahoma City law firm specializing in oil and gas law title examination, oil and gas litigation, environmental law, and real estate title examination. Currently, Professor Hampton is a lecturer for the American Association of Professional Landmen, as well as the Oklahoma City Association of Professional Landmen.