I have written this article for information purposes, and I hope you learn something from it. Though I would like to state it is current and up to date, in all candor, I can't. In most cases, the concepts are relatively accurate (except for obviously old and dated materials, primarily related to taxes). You should confer with your own lawyer about issues that affect you and your family.
AVOIDING PROBATE IN OKLAHOMA
With Oklahoma’s recent enactment of the “Non-Testamentary Transfer Property Act”, a person can now effectively avoid the probate process, through techniques described herein. Whether use of these techniques is a good idea or not depends upon family circumstances. If the person to inherit is receiving government benefits, and inheritance of the property will disqualify that person from receiving those benefits, then a transfer on deed procedure might not be the best idea. Additionally, if the beneficiary is a minor, a guardianship will have to be established in order for the minor effectively to inherit the real estate. There are other instances that may come into factor, which might not make use of the Non-Testamentary Transfer Property Act the best to use. Notwithstanding these reservations, here are some things that might be of interest to you:
First, the Non-Testamentary Transfer Property Act is similar to statutes adopted in other states (the techniques used in other states are accomplished through “beneficiary deeds”). Use of the statutory language (found in title 58 sec. 1251,et al), in a recorded deed with a “TOD” designation, permits the grantor to avoid probate as to the real estate, upon the Grantor’s death. After the death of the Grantor, certain forms will be filed with the county clerk, and the real estate will then belong to whomever has been designated as the “TOD Beneficiary”. The technique can be used for husbands and wives who want to leave their property to their children.
Second, the TOD beneficiary may decline the gift within nine months of the date of the Grantor’s death. The fact that somebody offers to give you something doesn’t mean you have to accept the gift.
Third, and in addition to real estate, bank accounts can be transferred on death by a “POD” technique, as set forth Title 6 O.S. Sec. 906(B), or and a similar technique can be used at credit unions (18O.S.Sec.381.48). Since there is a companion article on this website, “Probate by Affidavit”, I will simply restate (and rearrange the order contained in) that article, to round out the topic.
Avoiding probate for car titles, boats, etc., is accomplished by using a No Probate Affidavit (the form is provided by the Motor Vehicle Division of the Oklahoma Tax Commission, at any Tag Agency). Banks and credit unions also permit transfer of up to $5,000 in funds, to known heirs of an intestate decedent (someone dying without a will) – see 6 O.S. §906(B) or 18 O.S. §381.48 – through the use of an affidavit.
But what about stocks, bonds, personal property, annuities with no designated beneficiary? There is no known solution for annuities (where a beneficiary has not been named) other than probate, but there are techniques for transferring other personal property, without resort to probate. The Oklahoma Legislature adopted portions of the Uniform Probate Code (Sections 3-1201 and 3-1202), which permit personal property valued less than $20,000 to be transferred to heirs, in lieu of probate. There are restrictions on use of this technique; if probate proceedings have been initiated anywhere in the United States, transfer by affidavit is not available in Oklahoma.
The pertinent statutes are contained in 58 OS §393-394, and that portion of the probate code is attached to this article.
Under the statutes, the heirs prepare the affidavit and present it to the custodian of the personal property, which would presumably include stock transfer agents, Oklahoma Tax Commission offices for conveyance of vehicles, banks, and the like. Once the affidavit is presented to the “custodian”, the “custodian” delivers the personal property and is then discharged from further liability. Thus, the “custodian” is afforded the same rights as if the “custodian” were dealing with the personal representative of the estate.
This procedure is not available if a probate pends in another jurisdiction.
Once the affidavit procedure is implemented, it will permits transfer of both tangible and intangible personal property.
A specimen affidavit might be worded as follows:
I, John Doe, being of legal age and being first duly sworn, depose and say as follows:
1. The decedent, Jane Doe, died on the 30th of June, 2005, and at the time of her death, resided in Broken Arrow, Tulsa County, Oklahoma.
2. At the time of Jane Doe’s death, she owned the following property in Oklahoma:
Bank account #12345 at Bank of Oklahoma, N.A., with a date of death value of $4,023.12; and
1991 Nissan Sentra VIN #6789, having a date of death value of $1,000
Thus, the fair market value of the property located in the State of Oklahoma, which is subject to disposition by will or the statutes of intestate succession, at the time of Jane Doe’s death, is less than $50,000.
3. No application or petition for the appointment of a personal representative is pending, or has been granted in any jurisdiction, including Oklahoma.
4. The names and address and respective shares of the persons entitled to receive the property described above are:
John Doe, 12345 E. 1st St., Broken Arrow, OK - surviving spouse – 100%
5. All taxes and debts of the decedent have been or are otherwise provided for or are barred by the statute of limitations.
This affidavit is made pursuant to 58 OS §§393-394, and is dated this ___ day of _______, 2005.
Sworn to before me and subscribed in my presence by the said John Doe on the date aforesaid.
My Commission Expires:
58 O.S. §393:
A. At any time ten (10) or more days after the date of death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock brand belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock brand to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
1. The fair market value of property located in this state owned by the decedent and subject to disposition by will or intestate succession at the time of the decedent's death, less liens and encumbrances, does not exceed Fifty Thousand Dollars ($50,000.00);
2. No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
3. Each claiming successor is entitled to payment or delivery of the property in the respective proportions set forth in the affidavit; and
4. All taxes and debts of the estate have been paid or otherwise provided for or are barred by limitations.
B. A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection A of this section.
C. The public official having cognizance over the registered title of any personal property of the decedent shall change the registered ownership from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection A of this section.
D. At any time after the date of death of a person who was an owner of a severed mineral interest in real estate, any person who claims an interest, immediately or remotely, through the decedent may file with the county clerk of the county where the mineral interest is located an affidavit of death and heirship in compliance with subsection C of Section 67 of Title 16 of the Oklahoma Statutes. Pursuant to Sections 82 and 83 of Title 16 of the Oklahoma Statutes, there shall be a rebuttable presumption that the facts stated in the recorded affidavit are true as they relate to the severed mineral interest, the death of the decedent, and the relationships, family history and heirship stated.
58 O.S. §394:
The person paying, delivering, transferring, or issuing personal property or the evidence thereof to the successor or successors named in the affidavit is discharged and released to the same extent as if the person dealt with a personal representative of the decedent. Such person is not required to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled there to. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
©2017 James H. Beauchamp