Know Your Rights
With Oklahoma’s recent enactment of the “Non-Testamentary Transfer Property Act”, avoiding probate in Oklahoma effectively is now possible through techniques described herein. Whether the use of these techniques is a good idea or not depends upon family circumstances. If the legatee or devisee is receiving SSI or Medicaid or other such government benefits (excluding social security and Medicare), an inheritance of the property will disqualify the person from receiving those benefits.
Additionally, if the beneficiary is a minor, 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 about probate in Oklahoma 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 whoever 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).
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 the transfer of up to $50,000 in funds, to known heirs of an intestate decedent (someone dying without a will).
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 $50,000 to be transferred to heirs, in lieu of probate. There are restrictions on the 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.
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 the 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 permit the 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:
- The decedent, Jane Doe, died on the 30th of June, 2016, and at the time of her death, resided in Broken Arrow, Tulsa County, Oklahoma.
- 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.
- No application or petition for the appointment of a personal representative is pending, or has been granted in any jurisdiction, including Oklahoma.
- 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%
- 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 _______, 2021.
Sworn to before me and subscribed in my presence by the said John Doe on the date aforesaid.
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.