QUESTION: Dear Mr. Scott:
The wrong will was sent in error to a company for execution of an oil and gas division order. The division order was completed before the error was discovered. It would not even have been discovered if the same company had not wanted the will recorded for the purpose of releasing royalties for a different well currently in suspense.
The correct will has been probated (in another state, Oklahoma), as I have learned, yet the analyst at this company wants me to "record" the incorrect will that was sent to her in the state where the well (and the company) are situated (in AL). I don't see how that can be done. I have been told by the probate judge for the relevant county that decedents' wills are not recorded but probated and that the filing of an auxiliary probate would be the procedure to execute in AL for a will probated in another state.
It sounds like an unlikely mess, but with the death of, first, my geologist father and within 3 months my landman brother, keeping track of the royalties bequeathed by my father to myself and my remaining siblings has fallen to me. Everyone lives in different states and communication has been imperfect. I was very upset when I learned that I had been stuck with a superseded will to work with. I don't think that it was intentional. Just an unlikely mess, as I said.
I might add--though I don't know if it affects this issue--that I do have an Assignment and Bill of Sale for the relevant county, which includes the well with the royalties in suspense, and it was recorded in that county shortly after my father's death.
The analyst at this company has been sent the correct will. I'm beginning to think that she may not know how to handle the situation. Otherwise, I don't know why she would want to use a will that has been superseded. It may have to do with the fact that the execution of the division orders was done "on her watch" using the wrong will, even though that was not her fault. It seems my hands are tied with the correct will having been already probated, though in a different state.
Just with these facts, can you suggest how I should approach her? I had an upsetting situation with another company concerning royalties that had not been paid out for several years. (I don't know whether I was paid the interest on those royalties, either, though the royalties were finally paid---the correct amounts I assume.) That experience showed me that it is probably best to have some kind of handle on the situation myself before I approach her again. I have not yet done the auxiliary probate; I thought it best to wait until everything is understood.
I would just like some feeling for what is usually done to correct such a situation, i.e, an old incorrect will was used in the execution of a division order. Have you seen such an error before? Most especially, the correction of such an error? Something must be done so that I and my siblings can unlock the royalties in the suspense account.
Thank you very much.
ANSWER: Since the wrong will was used to create the division order, you'll need to send them the correct one of course so they can send out a new division order, and it sounds like you've already done that. I don't see why you should need to file the "incorrect" will in Alabama, though it could be done (contrary to what the judge told you.) A will is usually probated, not just "filed"; but there's no reason you can't file a will at any county clerk's office you like. In fact you can file almost any legal document you like with any county clerk's office. Just call one and ask how to go about it if you don't know.
You can also (and probably will need to) file the "correct" will in Alabama, since that's where the property is located (but see below paragraph as it may not be necessary) and the company may even require an "ancillary probate" of your father's estate be done in Alabama before the minerals will truly be in your name, assuming they were not conveyed to you prior to his death (see below.) You can check with any probate attorney in Alabama to ascertain whether that would be necessary or not.
If the "assignment" you mentioned was from your father to you kids, signed by him while he was still living and NOT contingent upon him dying before the property would transfer (i.e. NOT a "transfer upon death" type deed), then his will and probate of same would be irrelevant anyway since the rights were conveyed prior to his death, even if the deed was not recorded until after. You didn't specify who the grantor was however so I don't know if that's any help or not. Note: The reason for the qualification above is due to the fact that "transfer upon death" deeds are not valid for property owned in some states, including Alabama. A "normal" deed however, would be valid if he signed it and conveyed the mineral rights to you prior to his death.
Best to check with a probate attorney to get the correct instructions as to how to get the minerals into your name. I would say an Alabama attorney (or one licensed to practice there) would be your best bet.
Hope this helps you out.
Frederick M. "Mick" Scott CMM, RPL
The Mineral Hub
[an error occurred while processing this directive]---------- FOLLOW-UP ----------
QUESTION: Mr. Scott:
Sorry I didn't make it clear that my father is the grantor of the Assignment and Bill of Sale I mentioned to you. At least that's how I interpret the document.
I want to quote the opening lines from it:
"That, this Assignment and Bill of Sale (the 'Assignment') dated effective as of 7:00 a.m., local time, November 5, 2005 hereinafter referred to as the 'Effective Time', is from *my father*, by his Attorney-in Fact, *my brother* and *my older sister*, Co-Attorney-in Fact, whose address is *------* 'Assignor', (the paragraph goes on to list myself, my brother and both of my sisters, stating for each that she or he gets "an undivided 1/4 (25%)" and stating the home address of each of us at the time, ending) hereinafter referred to as 'Assignee'."
My father's death certificate has a "date certified" of November 10, 2005. My father would have been incapacitated on that November 5 date. (My brother had earlier received a signed note from my father's doctor stating that my father was in a coma and was not expected to recover.) The Assignment is signed by the two Attorneys-in-Fact (my brother and my older sister), obviously, I presume, because my father was not able to participate. The power of attorney document appointing my brother and older sister co-attorneys-in-fact had been properly filed on November 2, 2005 and signed by my father, witnessed and notarized, on May 9, 2003.
The document discusses "All of Assignor's rights, titles, and interest..." including contracts "of whatever kind or character" involving "oil, gas and other minerals in and under or that may be produced" and includes an exhibit describing the 30 acres involved and the names of all the wells. It is county-specific. The same document was created for and tailored to each of the counties in each of the states in which my father had wells paying him an interest. (A tidy enough sum for him, but at 1/4 the amount hard to reconcile with the effort and potential expense involved to keep it all straight.)
As best as you can tell, does that sound like the document fulfills your description?
"If the "assignment" you mentioned was from your father to you kids, signed by him while he was still living and NOT contingent upon him dying before the property would transfer (i.e. NOT a "transfer upon death" type deed), then his will and probate of same would be irrelevant anyway since the rights were conveyed prior to his death, even if the deed was not recorded until after. "
It doesn't look to me that it was contingent upon him dying before the property would transfer; at least it doesn't say that.
Your original response was very helpful. I will be referring back to it as I decide how to proceed. Believe me, though, had I the money, I would have already contacted an Alabama attorney. Thank you for your help.
You wrote: "The power of attorney document appointing my brother and older sister co-attorneys-in-fact had been properly filed on November 2, 2005 and signed by my father, witnessed and notarized, on May 9, 2003."
My thoughts are that if your father was "of sound mind" on May 9th, 2003 when he signed the POA, then I'd say you should have no worries, as the mineral rights were assigned to you kids by his attorneys-in-fact prior to his death on November 10th via the November 5th conveyance. Since the conveyance was prior to his death, a probate of his will is not needed in any state as far as the mineral rights conveyed in the assignment you mentioned are concerned. I don't know why the oil company was asking for his will. It shouldn't matter since the minerals were conveyed prior to his death.
The only other thing I'd make sure of is that the POA your siblings were given allowed them to sell your father's property in the event he became incapacitated (which he apparently was at the time they did the assignment.) From what you quoted from the POA it sounds like you're covered there as well though.
Hope this helps.
Frederick M. Scott CMM, RPL
The Mineral Hub