Oklahoma Bar Journal
When and How to Use Oklahoma’s Affidavits Instead of Probate
By Sarah Stewart and Hiba Jameel
One of the hardest things we face in our lives is the death of a loved one. The grief and stress associated with that loss can be overwhelming. Adding the costs, complexities and pressure of going to court for probate can be crippling. Luckily, Oklahoma’s Legislature recognized the pain this process can bring to families. So, they passed laws allowing Oklahoma families to avoid probate for certain estates.
This article will cover when to use Oklahoma’s affidavit of tangible personal property, affidavit of death and heirship for severed mineral interests1 and affidavit of known heirs2 instead of probate.
AFFIDAVIT OF TANGIBLE PERSONAL PROPERTY
The Oklahoma Legislature originally enacted the statute allowing an affidavit of tangible personal property to transfer personal assets to heirs without a probate in 1998. Since that time, the value of an estate that an heir can use the affidavit for has steadily increased. When the value of the estate surpassed the value allowed by the Oklahoma state treasurer to accept an affidavit for unclaimed property, the treasurer sought clarification of the conflict. A 2006 attorney general’s opinion stated the Oklahoma state treasurer retains the maximum permitted in 60 O.S. §674.2 in regard to unclaimed property held by the treasurer’s office.3
Thus, for personal property held outside the state treasurer’s office, an affidavit of tangible personal property allows heirs 10 or more days after a loved one has passed to submit an affidavit to anyone who owes the deceased money or has the deceased’s personal property in their possession. The affidavit can be used whether the decedent had a last will and testament or not. But the total value of the Oklahoma estate of the decedent must be under $50,000. An “estate,” as used in the statute, does not include any property that would not be subject to probate. Additionally, the affidavit cannot be used if there is a petition for the appointment of a personal representative filed or granted.4
The affidavit must set forth the heirs entitled to distribution and the amount each heir is entitled to receive. The affidavit must state all debts and taxes of the estate have been paid, negotiated or are otherwise barred, and the affidavit must be signed by or on behalf of the successors in interest and delivered to each individual or company holding the assets of the decedent.
AFFIDAVIT OF DEATH AND HEIRSHIP FOR SEVERED MINERAL INTERESTS
The statute allowing for an affidavit of tangible personal property to transfer an estate’s personal assets also allows for an affidavit of death and heirship to transfer severed mineral interests to an heir.5 The affidavit must be filed with the county clerk in the county where the property is located. The affidavit must state the decedent died without a last will and testament; if the decedent had a last will and testament, it was never probated, and the last will and testament is attached; or the last will and testament was probated, but the property was left out of the final decree, and the final decree is attached.6
However, filing the affidavit does not give the heir immediate marketable title. In order for the title of the property to be marketable, the affidavit must have been on record in the county clerk’s office in the county where the property is located for 10 years, and there must be no filings of documents inconsistent with the affidavit. The strict requirements for marketability of title under the statute limit a client’s ability to sell and sometimes lease their mineral interests. Due to that fact, clients may choose a probate over using the affidavit.
AFFIDAVIT OF KNOWN HEIRS
An affidavit of known heirs can be used when the amount of “aggregate deposits held in single ownership in the name of the deceased” at the institution is less than $50,000.7 While the affidavit of tangible personal property may be used with any individual or company that holds a personal asset of the decedent, the affidavit of known heirs is restricted to banks and credit unions.8 To use the affidavit, the decedent must not have left a last will and testament. Additionally, the statute does not require statements from the affiant that a petition for appointment of personal representative has not been filed or granted.
PENALTIES AND FINES
Both statutes assess penalties and fines against those who submit knowingly false affidavits. The penalties are the same in 58 O.S. §393 and 6 O.S. §906. Those who knowingly submit a false affidavit are subject to a fine of up to $3,000 and possible imprisonment of up to six months or both. The false affiant will be expected to pay restitution to the rightful heirs of the decedent.
Oklahoma law allows families to transfer the assets of a deceased loved one without a probate in limited situations. If you find your client’s situation meets the right criteria, you can save them money and stress by drafting an affidavit of tangible personal property, affidavit of death and heirship or an affidavit of known heirs.
ABOUT THE AUTHORS
Sarah C. Stewart graduated from the OCU School of Law and practices in Edmond. She focuses her estate planning practice on helping families understand and plan for their specific goals throughout their lifetimes. She has helped Oklahoma families with guardianship, estate planning and probates since 2009.
Hiba Jameel is a third-year law student at the OCU School of Law. She holds a bachelor’s degree in translation from her native country, Iraq, and a master’s in international relations from the University of Central Oklahoma as a Fulbright scholar. Her diverse career ranges from nonprofit to legal support.
- 58 O.S. §393.
- 6 O.S. §906.
- Question submitted by Scott Meacham, Oklahoma state treasurer, 2006 OK AG 21.
- 58 O.S. §393 (A).
- 58 O.S. §393 (D).
- 16 O.S. §67.
- 6 O.S. §906.
- 6 O.S. §906 (A)(1).
Originally published in the Oklahoma Bar Journal – OBJ 92 (February 2021)