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What is Ancillary Probate?

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Are you an heir or family member of someone who has died in another state but who owned mineral interests in Oklahoma at the time of his or her death?  Has the oil and gas company stopped making royalty interest payments on account of such death? If so, you will have to complete an ancillary probate to receive such royalty interest payments.

What is the Problem with Owning Real Estate and/or Tangible Property Outside of Your State?

Owning real estate or tangible personal property in several different states poses a unique challenge when planning your estate.  This is because the laws of the state where the real estate or tangible personal property is physically located will govern what will happen to the out of state property after you die, not the laws of the state where you live at the time of your death.  This, in turn, may require an ancillary probate.

What is an Ancillary Probate?

An ancillary probate refers to a probate proceeding that is required in addition to the primary probate proceeding that will take place in your home state.

When is an Ancillary Probate Necessary?

Typically, an ancillary probate will be necessary because you own a piece of real estate that is located outside of your home state, although it could apply to tangible personal property, such as a car, boat, or airplane, that is registered and titled outside of your home state.  In Oklahoma, many ancillary probates are filed as a result of someone who has died in another state but who owned oil, gas, or mineral rights located in Oklahoma.

How does an Oklahoma Ancillary Probate Work?

Title 58, Oklahoma Statutes, § 677 governs the probate for a non-resident decedent whose estate has been probated in another state.  For a non-resident who dies without a will, whose estate is first probated in the state where he died, a petition is then filed in the Oklahoma court with a certified copy of the order appointing the personal representative, distributing the estate and determining heirs.  The petition is set for hearing and notice is given, and, if there are no objections, the Oklahoma court will enter an order distributing the Oklahoma property in accordance with the Oklahoma law of intestacy.

When a will has been  probated in the  home state of a non-resident decedent, a certified copy of the will, the order or decree admitting the will, the order distributing the estate and determining heirs is filed with a petition requesting that the will be admitted by the Oklahoma court and for distribution of the Oklahoma property according to the will.  After notice and a hearing, if there is not an objection, the Oklahoma court will distribute the Oklahoma property according to the will.

In each case, the Oklahoma court will require an affidavit that notice was given to creditors in the domiciliary estate or that a notice to creditors be given as required under Oklahoma law, unless there are no known creditors.

For both non-resident intestacy and probate of a will, if there is an objection with merit, then the Oklahoma court will appoint a personal representative and an Oklahoma administration or probate will follow.

In my next article relating to ancillary probates, I will present some planning ideas so that you can avoid the necessity of filing an ancillary probate.

If you are the heir or family member of someone who has in another state and who owned Oklahoma real estate, tangible personal property, or oil, gas or mineral rights and you would like to discuss an ancillary probate in Oklahoma, or, if you own real estate, tangible personal property or oil, gas or mineral rights in another state or several different states and you would like to discuss how you can avoid an ancillary probate, feel free to call me at (405) 254-5005.

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