How to Avoid Probate After Death: Utilizing Small Estate Affidavits
As a general rule, all assets owned by a deceased person in his or her name only must be probated. There are, however, a few notable exceptions, primarily for motor vehicles and estates comprised of personal property valued at less than $50,000. What follows is an overview of the Oklahoma assets that can be transferred by affidavit after death. Such affidavits are commonly referred to as “small estate affidavits.”
Bank Accounts and Safe Deposit Boxes (No Will)
If a bank account held solely in the name of a deceased person who did not have a Will contains less than $50,000, the bank may transfer the funds to the known heirs upon receipt of an affidavit from the heirs. Similarly, if the sole renter of a safe deposit box dies without a Will and the contents of the safe deposit box are his or her only known assets, the bank may release the contents to the heirs upon receipt of an affidavit from them.
Note that the bank is not required to release the funds or contents to the heirs. It may. If it chooses to release them after receiving a proper affidavit, however, it is relieved of liability to any other party.
For more specifics, see Title 6, Section 906 of the Oklahoma statutes.
Delivery of Personal Property and Payment of Debts
Anytime ten days after death, any person in possession of tangible personal property owned by the deceased person or owing money to him or her must deliver said property or pay the indebtedness to the person claiming to be the deceased person’s successor upon receipt of an affidavit from the successor stating all of the following:
The value of the deceased person’s property located in Oklahoma and passing by Will or intestacy, less liens and encumbrances, is less than $50,000;
No petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
Each claiming successor is entitled to payment or delivery of the property in the respective proportions set forth in the affidavit; and
All of the estate’s taxes and debts have been paid, otherwise provided for, or are barred by limitations.
For more specifics, see Title 58, Section 393 of the Oklahoma statutes.
Motor Vehicle (Will)
The Oklahoma Tax Commission’s Motor Vehicle Division allows a vehicle beneficiary named in a Will to obtain title to the vehicle by filing out an affidavit that states all of the following:
The fair market value of property owned by the decedent in Oklahoma and subject to disposition by Will, less liens and encumbrances, is less than $50,000;
No petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
The affiant is successor in interest to said vehicle and is entitled to delivery of it; and
All taxes and debts of the estate have been paid, otherwise provided for, or are barred by limitations.
The affiant will also have to provide a copy of the death certificate and the unprobated Will that names him or her as the beneficiary of the vehicle. The affidavit form can be found here: https://www.ok.gov/tax/documents/405.pdf.
Motor Vehicle (No Will)
The Oklahoma Tax Commission’s Motor Vehicle Division also allows an heir who, according to Oklahoma’s intestacy laws, has a right to inherit the vehicle of a person dying without a Will to obtain legal title to the vehicle by filing an affidavit that states all of the following:
The decedent left no estate that needs to be probated;
No person has been appointed as personal representative;
The vehicle has not been bequeathed by will to anyone; and
No living person has a prior right to the vehicle.
The affiant will also have to provide a copy of the death certificate. The affidavit form can be found here: https://www.ok.gov/tax/documents/798.pdf.
Severed Mineral Rights
After the death of a person who owned a severed mineral interest, his heirs can claim ownership of it by filing an affidavit of death and heirship with the county clerk where the minerals are located. However, the heirs’ title (or the title of their successors) does not become valid and marketable against persons claiming adversely to such an affidavit unless and until all of the following are met:
The affidavit states 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 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;
The affidavit lists the names of the decedent’s heirs and their relationship to the decedent;
The affidavit states that the maker is related to the decedent or otherwise has personal knowledge of the facts stated therein;
The affidavit has been recorded for at least ten years in the office of the county clerk where the real property is located; and
During the ten-year period following the recording of the affidavit, no instrument inconsistent with the heirship alleged in the affidavit was filed in the county where the minerals are located.
In other words, filing such an affidavit of heirship places an ownership claim of record that will ripen into valid and marketable title after ten years, assuming no inconsistencies arise in the meantime. Until that ten year mark, however, a title company will likely not issue title insurance and a bank will likely not let you borrow against them. Depending on their risk tolerance, an oil and gas company may or may not agree to lease them. Therefore, if you want to sell, mortgage, or possibly lease the minerals before the ten-year mark, you’ll likely have to obtain title through probate.
For more specifics, see Title 16, Section 67 of the Oklahoma statutes.
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