Ask an Attorney: Leasing Through Probate - KFYRTV.COM - Bismarck, ND - News, Weather, Sports

Ask an Attorney: Leasing Through Probate

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WE HAVE BEEN CONTACTED BY AN OIL COMPANY ABOUT LEASING SOME MINERALS THAT MY GRANDFATHER APPARENTLY OWNED OUT IN THE WESTERN PART OF NORTH DAKOTA.  THEY SAY WE NEED TO HIRE AN ATTORNEY TO DO A PROBATE IN ORDER TO BE ABLE TO RECEIVE ANY LEASE MONEY.  HOW IS THIS DONE? 

· Happening often since oil boom started

· Not enough information in this to be very specific in answering

· Sounds like possibility of more than one probate

 

Why would that be?

· Grandpa was two generations back

· This question sounds as if he previously passed away

· So first question would probably be, who were his heirs at the time of his death?

 

And then what's the second question?

· If this client were coming in to talk to me, I would have LOTS of questions

· But next question probably would be, did Grandpa have a Will?

· Because if he did, that tells you who his heirs would probably be as to these minerals

 

And if he did have a Will, what's the next thing you would want to know?  

· Whether or not there was a probate action when Grandpa died

· If so, you would then want to know whether by some chance that probate action is still an open file with the court

 

If there was a probate, and the case was still open, what happens next?

· This question makes it sound as though the minerals weren't transferred out of Grandpa's name, and that's what needs to happen, at least as a first stage

· So you would check the court file, or the County Recorder's office, to see what name these minerals are in

· The oil company often can provide us with their mineral title opinion, and we have a head start of knowledge from that

 

If the court file has been closed, what steps do you need to take?

· Couple ways to go

· If Personal Representative is still alive, he/she could petition to reopen the probate to do this transfer out of Grandpa's estate

· Might be cheapest/simplest way



What if there never was any kind of probate?  Can the family still do something?

· Absolutely; would be what's called an intestacy proceeding rather than a probate

 

What does that mean?

· Just that he died without a Will

· Need to determine who his heirs would have been at the time of his death

· Insufficient information here to speculate

· If he had a surviving spouse, she might turn out to be the sole heir

· But we've discussed in the past, that's not set in cement

· Remember - blended families, children that are not children of both spouses, etc.

· Can change who gets what

 

So this would be a court proceeding too, just like probating the Will if there had been a Will?  

· File Petition to determine heirs and appoint Personal Representative

· May be more than one person who would be entitled to appointment

· If so, get waivers/consents if possible

· Or give notice and set up hearing

 

And once someone gets appointed, what happens?

· They'll do a Personal Representative's Deed of Distribution to get the minerals transferred from Grandpa's estate to whoever the heirs would have been

· Possible complication I mentioned at the beginning

· Two generations ago, so some of Grandpa's heirs might be dead by now as well

· Would need to probate their fractional share of his minerals also

· Depending on number of deceased heirs, can result in multiple estates

 

Those couldn't be combined in some way?

· That used to happen; we'd combine what were called heirship actions

· Courts now appear to be wanting separate court filing for each deceased owner or heir; seems to be especially true in the western part of the state, where most of these minerals are

· If Grandpa or any of his heirs died more than 3 years ago, probably will be required to publish a notice of hearing for each one case

· Publishes three times, 1 time each week

· Somewhat expensive, and takes time to get as far as a hearing in those situations

· Can get expensive

 

So what this question is asking can be done, but could be complicated?

· Exactly - if Grandpa had a large family, maybe no surviving spouse, there could be a lot of heirs, and some of them may have passed away in the meantime also

· So it depends on what facts this client brings in

· Could be fairly simple, but could involve more than one legal action to get it accomplished

· May want family to agree to share legal expense for whatever needs to be done

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