Limited Applicability of the Affidavit of Death and Heirship

by Roberto Seda on January 11, 2018


Late last year, our blog discussed how you could get paid for "Grandma's Mineral Interest." This post will expand further on the Affidavit of Death and Heirship ("Affidavit") mentioned in that prior blog.

Now, imagine taking a large piece of glass and dropping it on a concrete floor. What would the result be?

Most people would say the glass would shatter into many small pieces. Similar to that piece of glass, in many areas in Oklahoma mineral title has "shattered" to a point where some individuals own less than a one-acre mineral interest.

The value of a mineral interest will depend largely on whether that mineral interest is producing. If it not, and there is no speculation that it will, then there it is probably not worth much. At that point, it might be prudent to look for more economic means of obtaining marketable title to that not-so-valuable (right now) mineral interest.

As the years pass, title will continue to be broken up or "fractionalized" as people sell partial interests, or as people die and their interest is distributed through their estate.

While the legislature has not addressed the fractionalization dilemma, it appears the legislature's solution for the marketability problem was to enact Title 16 O.S. Sec. 67. This statute allows the Affidavit to possibly pass marketable title.


The Current Legislative Fix

The statute contemplates both intestate and testate scenarios. For both scenarios, the Affidavit must (1) state that the affiant was related to the decedent or that he had personal knowledge of the facts, (2) state the decedent's heirs and their relationship to the decedent, (3) be recorded 10 years with the county clerk and (4) have no recorded instrument contradict the facts stated in the Affidavit.

In intestate situations, the Affidavit must state the decedent died intestate and it must provide enough information to determine the intestate heirship. However, if a decedent died testate, the statute requires slightly more.

The Affidavit must (1) state that the will has not been probated and attach a copy of the will, or, (2) state that 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 Application

The application of the statute is clear when a decedent died intestate. If you have the proper information, the interest is distributed pursuant to the intestacy laws of Oklahoma. On the other hand, the statute does not set out how to distribute an interest when a person dies testate. Under Oklahoma law, a will must be probated in order to pass title to real property.

Thus, despite having the will attached to the Affidavit, it is unknown whether the legislature intended for the interest to be distributed via intestacy or to allow an interest to pass under the terms of a will after 10 years despite not having been probated.

The Oklahoma Title Standards Committee has addressed the uncertainty by adding language to Title Standard Section 3.2 to acknowledge that the statute is unclear. As a result, when a decedent dies testate, it is recommended that the will be probated.



As the years pass, mineral ownership will continue to be fractionalized. However, the cost to probate those mineral interests may also continue to increase. For those who claim an interest through a decedent who died intestate, the Affidavit provides a solution to allow an interest to become marketable without going through the probate process.

However, when a person dies testate, the Affidavit does not give the relief that the legislature may have intended to provide. Thus, until the legislature provides more guidance or a court rules on the interpretation on the statute, mineral interests will not become marketable regardless of whether all of the other elements of the statute are met.


Topics: Oil, Gas, + Energy, Oil + Gas Title Examination, Roberto Seda