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Ask an Attorney: Representative Deeds

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My sister and our cousins recently got notice from an oil company that our grandparents had owned a small mineral interest up in Burke County, and that we need to get what they called personal representative deeds to transfer. Those minerals out of our grandparents' names in order for us to get any oil lease monies. We don't understand any of this, and need to know how to start.

That does sound as though it could be complicated. How would you advise them to start?
• Bring as much information as possible to an attorney to review, especially the notice from the oil company
• Sounded as though the grandchildren had no prior knowledge of these minerals
• I called the questioner and found out a bit more, and it definitely IS complicated

In what way? What did they tell you?
• First of all, the grandparents had six children
• Only two are still alive
• So it's not as simple as saying "we need a deed to get these interests out of your grandparents' names" - far from it

Why is that?
• It turns out that there were probate actions done for both grandparents when they died back in the 1980s
• But at that point the family apparently didn't know about these particular minerals
• So they weren't included in the probate transfers
• That's what the oil company says has to happen now, just as a starting point
Why is it just a starting point?
• One of the children - the father of the person who sent in the question - had been the personal representative in those two estates
• He has since died, and so has his wife, who would have been entitled to his share
• And since nobody knew about these small mineral interests, several things need to happen in two generations here

What sorts of things?
• Old estates can be reopened if new property is learned about
• But here, the personal representative of the grandparents' estates is deceased
• Of the other siblings, two sisters are still living
• One of them has been out of contact with the family for years, and is believed to be in a long-term care facility
• So the other sister will need to seek appointment from the court as a new personal representative for the grandparents' two separate estates

How would that be done?
• There are several potential approaches
• She could ask the court to reopen the grandparents' estates in what is called "subsequent administration," and ask the court to appoint her personal representative to at least get the minerals out of those two estates
• But there's even a problem with that approach

Why?
• The other living sister has an equal right under the probate laws to be appointed as the new personal representative
• The little bit of information we have seems to indicate that she's now incapacitated
• If so, she wouldn't be able to sign a waiver of her right to appointment
• That almost certainly means setting up an actual hearing date and trying to see if the sheriff in the county where her care facility may be can locate her to serve her with probate paperwork
• And no matter which of the three possible approaches are used, there will probably need to be publication of a notice of hearing, identifying all possible heirs and giving the legal description of the mineral interest
• That's to avoid other heirs potentially turning up later and trying to set aside what the court does now - you give notice in the Burke County newspaper
• Typically, nobody shows up to contest, but from what I'm finding in other cases, the judges are requiring the publication

That does sound complicated, and maybe expensive, but before we go on, you mentioned three possible approaches?
• Yes, and here I'm just talking about the grandparents' estates
• The first was to try to reopen the old 1980s probates, as I said
• Another might be a formal probate
• Perhaps unlikely because the original Wills are already in a court file back 30 or so years
• And to do any kind of probate, you need the original Will to present it for probate
• The third possibility is an intestacy action, but there you are declaring that there was no will, which really isn't true
• And all three methods are going to require publication
• And probably separate publication in the estates of both grandparents
• That doubles the publication costs just for those two people

And that's just in that first generation, correct? You said that some of their children had died in the meantime?
• Yes, that's a further complication
• Six children in all, two still living
• So six shares out of the grandparents' estates
• And although I want to check with a lawyer up in oil country, I believe the grandparents' minerals at this point would be required to be passed to the estates of the deceased children - four shares there - and one share to each of the two children who are still living
• But if I'm correct in the belief about the deceased children's estates needing to be either reopened, or probated in the first place, you're talking a minimum of four additional probates
• And probably publication of notice of hearing in all of those because I'm told they all died more than three years ago
• And there's at least one spouse who survived a deceased heir, and her estate would probably also need to be reopened or begun

So, potentially very complicated, as you said. Is there any simpler possibility?
• In some situations, oil companies have accepted a death certificate and something called an affidavit of heirship
• But in this case, it seems that the lawyer who examined the title is going to insist on actual probate deeds out of multiple estates to multiple heirs
• And I don't think they are going to budge on that issue
• So the family here simply needs to hope, I guess, that enough money will come from these oil leases to make all the expense and trouble worthwhile
• I do intend to check with some of the lawyers who practice up there to be sure there isn't something simpler that could be done, but on the face of it right now, it looks like two generations and multiple probates
• I'll try to report in a later segment if there is a simpler possibility

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