Why Non-Residents Should Have Their Estate Plan Reviewed by an Oklahoma Estate Planning Attorney
SUMMARY
A common issue we deal with is the aftermath of out-of-state residents not planning properly for distribution of their Oklahoma real property upon their death.
BACKGROUND
We are contacted often by people who had no idea that their parents or grandparents owned oil, gas, and mineral rights in Oklahoma until they were contacted by someone offering to lease or purchase those rights. Oftentimes, we must deliver the unfortunate news that the estate plan their loved one put in place does not meet certain Oklahoma requirements. In the end, the division of the estate turns out differently than what the parent or grandparent desired.
IMPLICATIONS
Below are some areas of law that highlight why it is so important to have your estate plan reviewed by an Oklahoma attorney if you own real property in Oklahoma, including surface, minerals, or leasehold rights.
- Oklahoma property must be administered by an Oklahoma court with proper jurisdiction. Unlike some other states, Oklahoma only recognizes out-of-state probates for very limited purposes. A probate order from a foreign state does not transfer title to real property located in Oklahoma. Likewise, a personal representative, administrator, or executor appointed by a court in another state does not have the power to execute documents related to the Oklahoma property. They cannot lease, sell, or transfer the property without authorization from an Oklahoma court.
- In probate, a will is construed under Oklahoma law, not the law of the state where it was executed. In The Estate of Boyd , the Court confirmed long-standing Oklahoma law that a decree from another state is void as to any determination made regarding lands in Oklahoma, and the interpretation of the will is made according to Oklahoma law. If a will is admitted to probate in another state, Oklahoma courts will generally admit the will as well. However, how the will is interpreted can vary greatly from how it was interpreted by the out-of-state court.
- Oklahoma is not a common law state. In Oklahoma, a spouse's right to inherit property is dependent upon how the interest was titled, how the interest was acquired, what has happened to the interest since being acquired, whether there is an estate plan, and how the estate plan is interpreted under Oklahoma law. While spouses do have certain rights, those rights are not necessarily as robust in Oklahoma as they are in other states. There are instances in which, absent a properly prepared estate plan, a surviving spouse may inherit only a minority interest in the property.
- Oklahoma requires an affirmative intention to disinherit certain heirs. Like most states, Oklahoma law provides a scheme for inheritance if there is not a valid will or other estate plan in place. Depending upon the circumstances, this list includes spouses, children, grandchildren, parents, grandparents, siblings, nieces, and nephews. In order to disinherit a child, or in some cases a grandchild, the will must demonstrate an unequivocal intention to disinherit the person. If the will is not drafted correctly, the person that the testator (the one who signs the will) intended to receive nothing, most likely will receive the share to which they are entitled under Oklahoma law.
- Incorrectly described or omitted property. We often encounter wills in which the testator attempted to leave all their Oklahoma property to a certain person or people, but either describes incorrectly or omits some or all of the real property. If the will does not contain proper "catch-all" language, there may be property that is not included, and must be distributed to a different person or people than those whom the testator intended.
At Munson & McMillin, we have attorneys that can work with your home state attorney to review your documents and confirm that they conform to Oklahoma law. This will ensure that your wishes for your Oklahoma real property are carried out in the manner you intended.
ABOUT MUNSON & MCMILLIN
Founded in 2007, Munson & McMillin, PC, is a mid-sized law firm with offices in Edmond and Tulsa, Oklahoma with a focus on the areas of estate planning, oil and gas title and litigation, construction defects and contract dispute, lien and lien foreclosure, surface title examination, cannabis law, and business litigation.
CONTACTING MUNSON & MCMILLIN
This publication is provided by Munson & McMillin. The information contained in this publication is not legal advice and should not be construed as such. Questions regarding the matters discussed in this publication may be directed to Rhonda McLean, or any other Munson & McMillin lawyer with whom you have consulted in the past on similar matters. Ms. McLean can be reached at 405-513-7707 or rmclean@munsonmcmillin.com.