Oklahoma Bar Journal
Good Grief! Why Choose a Summary Probate?
By Frank Hinton
Attorneys love a client who has everything together – the estate plan was put together, the will is clear and unambiguous and there are organized records for all real and personal property, and maybe there is even a detailed trust agreement. Your client has done everything right. No wonder the client feels angry and betrayed when you let them know probate proceedings are necessary. Maybe some piece of real property was never conveyed to the trust. Maybe the client believes an out-of-state probate in the decedent’s domiciliary jurisdiction should be sufficient. Or maybe the client just misunderstands that a will does not avoid probate. Cue the five stages of grief.
Oklahoma statutes provide four different procedures for probate or administration of a decedent’s estate. A full probate provides the most flexibility for contingencies, such as the sale of estate property or complicated heirship disputes. Section 58 O.S. §241 is specifically designed for estates under $150,000. Section 58 O.S. §677 provides for ancillary proceedings if the decedent was domiciled in a different state. However, attorneys frequently run into the problem that 58 O.S. §677 requires an order distributing estate from the domiciliary estate. Good luck getting one of those out of Texas where independent administration does not require an order distributing the estate.1 The subject of this article is 58 O.S. §245, which can shorten the timeframe by more than half compared to a full probate and has broader uses than either a 58 O.S. §241 summary probate or a 58 O.S. §677 ancillary probate.
The summary administration proceedings described in 58 O.S. §245-47 were initiated by an industry group formed by the National Association of Royalty Owners, National Association of Division Order Analysts, Oklahoma Division of the Mid-Continent Oil & Gas Association and the Oklahoma Independent Petroleum Association to address fractionalization of oil and gas mineral interests. The result of this collaboration was House Bill 2141, passed in the 1998 session of the Oklahoma Legislature.2 Thus, summary administration is particularly suited to oil and gas mineral interests but may be used in a variety of situations. A §245 probate can significantly lessen the grief typical probate proceedings can engender.
Your client yearns to explain to you why probate should not be necessary. Perhaps the client has properly probated the decedent’s estate in the domiciliary state and believes no probate is required. Unfortunately, only Oklahoma district courts have jurisdiction over administration of decedents’ estates with regard to real property in Oklahoma.3 Marketable title to real property will likely require an Oklahoma probate. A small estate affidavit may be used in situations where the estate consists of personal property valued at less than $50,000 but is ineffective to transfer any real property.4
We get it. Your out-of-state client suspects that requiring a second probate is a scam to keep Oklahoma lawyers gainfully employed, but there is good reason for a separate Oklahoma probate. Oklahoma is not a community property state and has different statutes with regard to what happens to property when a person dies without a will. Those are the obvious cases, but everything from creditors’ rights to statutes of limitations is going to be at least slightly different in Oklahoma. For example, there is no statute of limitations on probating a will in Oklahoma. Maybe your client lost out on an inheritance because a will was located only after it could no longer be legally probated in the domiciliary state. Guess what? The will can still be probated in Oklahoma, and your client may be able to inherit real property in Oklahoma while real property in another state was forfeited by failure to timely probate the will in that other jurisdiction.5 So, for every case where a summary probate is just another headache, there is also the possibility for a second chance to assert your client’s rights and achieve a more positive outcome.
Can your client get away with an affidavit of death and heirship or a small estate affidavit? Maybe, for a time. Affidavits of death and heirship have a narrow statutory use for severed oil and gas interests after the affidavit has been recorded for 10 years.6 One problem with affidavits of death and heirship is if the decedent died with a will, the statute does not say whether to credit those who would have inherited under the will or those who would have inherited had the decedent died without a will. It appears there was legislation introduced to clarify this, but such legislation has not yet passed the Oklahoma Senate.7
It may be worth the trouble to bargain in this phase. As to severed mineral interests, it might be that your client can get by with an affidavit of heirship, but it may be an opportunity to remind your client that ultimately a probate will probably be necessary and as with most legal problems, could become more complicated and more costly as time goes on.
So far, this article has discussed alternatives to a summary probate. At the end of the day, if the decedent died owning an interest in real property in Oklahoma or personal property valued at more than $50,000, a probate is going to be necessary. Perhaps your client is still grieving the loss of a loved one. Probate is complicated, expensive and stressful, right? Explaining the basics of Oklahoma summary probate can alleviate that frustration at the necessity of a probate. While a full probate will typically take at least six months and at least two hearings, a summary probate can take as little as two months and only a single hearing.
A summary probate in Oklahoma is available if 1) the decedent’s estate is valued at $200,000 or less, 2) the decedent has been dead for more than five years or 3) the decedent resided in another state at the time of death.8 Compare this to an ancillary proceeding (which requires an out-of-state decedent and an order distributing the estate in the domiciliary proceeding) or a 58 O.S. §241 summary proceeding (which requires assets less than $150,000). This makes a §245 summary probate a great one-stop-shop for a variety of cases. Summary probate can be a great option for mineral owners because they usually fall into one of these three categories and frequently fall into all three. Summary probate can also be useful where the major asset passing through probate is the decedent’s home, given the median price for homes in Oklahoma is around $128,934.9 The option to use summary probate in cases where the decedent has been dead for more than five years creates a use case for families that may be living in a parent or grandparent’s home but never needed clear title until five years passed.
Now that you have walked your client through the five stages of grieving, assuaged some fears about probate and established the available uses for summary administration, it is important to understand the procedure.
Initially, it will be important to collect the relevant information from the client, including the decedent’s date and residence at death, whether the decedent died testate, whether any administration or probate proceedings have been conducted elsewhere, names and addresses of any heirs, devisees or named executors of the decedent and legal descriptions of all real property. With this information, you can begin to prepare pleadings. Forms are available in a 1999 bar journal article on the same topic.10 Prior to using these forms, please be aware 58 O.S. §246 was amended such that objections may now be filed any time before the final hearing. Previously, objections were required to be filed at least 10 days before the final hearing.11
Venue is jurisdictional12 and fixed by statute in 58 O.S. §5, which requires that probate or administration proceedings are to be held (in order of priority):13
- In the county of which the decedent was a resident at the time of their death, regardless of where they died.
- In the county in which the decedent died, leaving an estate therein, the deceased not being a resident of this state.
- In the county in which any part of the estate of the deceased may be, where the decedent died out of this state, and the decedent was not a resident of this state at the time of his death.
- In the county in which any part of the estate may be, and the decedent was not a resident of this state but died within it and did not leave an estate in the county in which he died.
- In all other cases, in the county where an application for letters is first made.
The summary administration statute does an excellent job of setting forth exactly what should be included in the petition and the combined notice. One could prepare both these initial pleadings by looking at §§245 and 246, respectively, so repeating the requirements in full is unnecessary. If the decedent died testate, either the original will or a certified copy should be attached to the petition, and the petition should be verified by the client. It helps to understand the petition seeks 1) immediate relief in the form of appointing a special administrator and ordering combined notice to interested parties and creditors and 2) seeks relief at the time of the final hearing in the form of admitting the will to probate, determining the heirs, devisees and legatees of the decedent, approving the final account, distributing the property of the decedent and discharging the personal representative. Because the will, if any, will not be admitted to probate until the final hearing, a special administrator is used rather than an executor.14 The “combined notice” simply combines notice to creditors with notice of relief sought in the petition to all heirs, devisees, legatees, executors and other interested parties.
Once venue is chosen, relevant facts are determined and the will, if any, has been obtained, the petition for summary administration, letters of special administration and affidavit of nonmailing to creditors can be prepared and mailed to the client as a packet to execute and return. If it is not anticipated any funds will be handled in the summary administration and there will be no creditors’ claims, the final account may be prepared in advance and sent to the client as well. In the alternative, waivers of final accounting may be obtained.15
Once received back from the client, the petition, letters of special administration, combined notice, proposed order for combined notice and granting of letters of special administration and waivers of final accounting, if any, can be mailed to the court. As many certified copies of the petition and combined notice as required to mail to all interested parties as well as certified copies of the combined notice required for publication should be included with instructions to return. It is common practice to contact the judge’s office prior to mailing these pleadings to schedule a final hearing date to be entered in the combined notice and the order for combined notice.
By statute, the final hearing should be set for 45 days or more from the order for combined notice.16 However, as the presentment date for creditors claims’ must be within 30 days of the order for combined notice, and the final account must be filed at least 20 days before the final hearing,17 you should not schedule the hearing less than 50 days from the order for combined notice. It is best to set the final hearing at least two months out from the anticipated time the petition will be filed and an order for combined notice issued.
Within 10 days of issuance of the order for combined notice, the combined notice must be mailed to all interested parties and creditors and first published once each week for two consecutive weeks in the county’s paper for published legal notices.18 All creditors’ claims are barred if not presented to the personal representative within 30 days following the entry of the order for combined notice.19 However, objections to the petition can be made at any time before the final hearing.20
The §245 summary administration statute says little about a final accounting other than it can be waived, according to 58 O.S. §541 (by parties entitled distribution or if the personal representative is the sole recipient). Section 58 O.S. §§541-57 sets forth all requirements for final accounting and notice of final accounting for full administration or probate proceedings. As such, some lawyers follow, and in the author’s experience, some judges require the final account to be filed 20 days or more before the final hearing.21 At the same time, you should prepare and file the affidavit of mailing of final account and the affidavit of mailing of combined notice. Additionally, the affidavit of nonmailing to creditors (prepared by the client in the initial packet) and the affidavit of publication (prepared and hopefully timely received from the publisher) should be filed.
Assuming all notices have been sent and proof of all required notices have been filed in the form of an affidavit, the last item on the list is the final hearing. If no party objects or appears at the hearing to object, the judge will sign your proposed final order. Copies of the final order should be mailed to all interested parties, and an affidavit of mailing of final order should be filed. And with that, you have hopefully saved your client some of the grief a full probate can entail.
ABOUT THE AUTHOR
Frank Hinton is an Oklahoma City attorney specializing in probate, quiet title and oil and gas title examination. He is a frequent speaker on oil and gas legal topics and has been with the law firm of Elias, Books, Brown and Nelson PC since 2008.
- Tex. Prob. Code Ann. §145.
- Donald F. Heath Jr., Oklahoma’s New Summary Probate Act: Reducing the Time and Expense of Probate, 70 OKLA. B.J.2283 (1999).
- Pennoyer v. Neff, 95 US 714, 720 (1877).
- 6 O.S. §906.
- Mitchell v. Cloyes, 620 P.2d 398, 402 (Okla. 1980).
- 16 O.S. §67.
- 2019 OK H.B. 1223.
- 58 O.S. §245.
- www.businessinsider.com/average-home-prices-in-every-state-washington-dc-2019-6?op=1#48-oklahoma-128934-4 (accessed on Sept. 15, 2020).
- Heath, supra note 2, at 2291.
- 2013 Okla. Sess. Law Serv. Ch. 144 (H.B. 1547) (West).
- Presbury v. County Court of Kay County, 213 P. 311 (Okla. 1923).
- In re Estate of Fulks, 2020 OK 94, ¶24, __ P.3d __, (holding, “Pursuant to §5, venue is prioritized and lies first and foremost in the county where the decedent resided at the time of death.”).
- Heath, supra note 2, at 2284.
- 58 O.S. §541.
- Id. §246(D).
- Id. §553.
- Id. §246(C).
- Id. §246(B)(10).
- Id. §246(B)(8).
- Id. §553.
Originally published in the Oklahoma Bar Journal – OBJ 92 (February 2021)