Title Examination Standards
Chapter 1, App.
Chapter 3. Instruments in the Record
§3.2. Affidavits and Recitals.

1. A. Recorded affidavits and recitals should cover the matters set forth in 16 O.S. § 83; they cannot substitute for a conveyance, administration of an estate, or probate of a will except as provided in 16 O.S. § 67.
2. B. Affidavits and recitals should state facts rather than conclusions and should reveal the basis of the maker’s knowledge. The value of an affidavit or recital is not reduced if the maker is interested in the title.
3. C. Oklahoma statutes have authorized the use of affidavits to affect title to real property for several purposes. The specific Statute should be consulted and the requirements of the statute should be followed carefully.

4. D. Special attention should be given to the provisions of 16 O.S. § 67 - Acquiring Severed Mineral Interests from Decedent - Establishing Marketable Title:

   1. In part, 16 O.S. § 67 provides that a person who claims a severed mineral interest, through an affidavit of death and heirship recorded pursuant to 16 O.S. §§ 82 and 83, shall acquire a marketable title ten years after the recording of the affidavit by following the five specific steps set forth in Part C of Section 67. The act applies only to severed minerals, not leasehold interests. Section 82 provides that such an affidavit creates a rebuttable presumption that the facts stated in the recorded affidavit are true as they relate to the severed minerals. 2. Although not specifically required by 16 O.S. § 67, it is recommended that the affidavit contain sufficient factual information to make a proper determination of heirship. Such information includes the date of death of the decedent, a copy of the death certificate, marital history of the decedent, names and dates of death of all spouses, a listing of all children of the decedent including any adopted children, identity of the other parent of all children of the decedent, the date of death of any deceased children and the identity of the deceased child’s spouse and issue, if any. During the ten year period of 16 O.S. § 67, if an affidavit fails to include factual information necessary to make a proper determination of heirship, the examiner should call for a new affidavit that contains the additional facts necessary for a proper determination of heirship. If a new or corrected affidavit is filed, the statutory ten-year period would run from the date of recordation of the new or corrected affidavit 3. Title 16 O.S. § 67 is unclear when an unprobated will is attached, whether title passes to the intestate heirs or to the devisees under the will. Oklahoma cases have held that until a will is admitted to probate, it is wholly ineffectual to pass title to real property, including any mineral or leasehold interest and a devisee has no rights to enforce under the will. A foreign will that has not been probated in Oklahoma is ineffective to establish any interest or title in the persons claiming thereunder. If the decedent died with a will, strong consideration should be given to a probate of the estate. 4. If the decedent died intestate, strong consideration should be given to an administration of the estate or a judicial determination of death and heirship during the ten year period before the title becomes marketable by a properly prepared 16 O.S. § 67 affidavit.

   Authority: 16 O.S. §§ 53, 67, 82, 83.

   Comment 1: This Standard does not supplant other Standards or statutes providing for use of affidavits, such as 16 O.S. § 67 or 58 O.S. § 912.

   Comment 2: Affidavits affecting real property include: Affidavits to Terminate Joint Tenancy or Life Estates (58 O.S. § 912); Multi Subject Information Affidavit (16 O.S. §§ 82-83); Memorandum of Trust (60 O.S. § 175.6a).

   Comment 3: Affidavits to Terminate Joint Tenancy or Life Estates under 58 O.S. § 912 may be recorded with only a jurat or only an acknowledgment, or both. Since this provision is specific to § 912, prudence dictates that an affidavit which is not prepared under 912 contain both a jurat and acknowledgment. See 16 O.S. § 26.

   Comment 4: Before the affidavit or unprobated will has been of record for ten years, it is not uncommon for the title examiner to recommend to the party paying royalty owners to consider assuming the business risk of waiving the requirements of marketable title, which might include a probate administration, or judicial determination of death and heirship, and assume the business risk of relying upon the affidavit called for in 16 O.S. § 67.

   Comment 5: Yeldell v. Moore, 1954 OK 260; 275 P.2d 281. Oklahoma cases discuss the "factum" of a will: whether the will is legally executed in statutory form; legal capacity of the testator; the absence of undue influence, fraud and duress, Ferguson v. Paterson, 191 F.2d 584 (10th Cir. 1951); Matter of the Estate of Snead, 1998 OK 8, 953 P.2d 1111; Foote v. Carter, 1960 OK 234, 357 P.2d 1000. In Oklahoma the district court determines the validity of a will, interprets the will and determines the heirs. A probate proceeding is necessary to determine if there are pretermitted heirs, allow for spousal elections, determine if there is any marital property, and confirm the absence of liens for taxes and debts.

   Comment 6: Smith v. Reneau, 1941 OK 99; 2112 P.2d 160. The decree of the court administering the estate is conclusive as to the legatees, devisees and heirs of the decedent, Wells v. Helms, 105 F.2d 402 (10th Cir. 1939).

   Comment 7: The use of (non-judicial) heirship affidavits under 16 O.S. § 67 may also be suspect in the context of restricted citizens (members) of the Five Civilized Tribes in light of the Act of June 14, 1918, 40 Stat. 606 (25 U.S.C. 375) and Section 3 of the Act of August 4, 1947, 61 Stat.731 which confers exclusive jurisdiction upon the courts of Oklahoma to judicially determine such heirship in accordance with the Oklahoma probate code.

   Comment 8: The use of affidavits under 16 O.S. § 83 are acceptable for the purpose of establishing blood quantum of restricted citizens (members) of the Five Civilized Tribes as an attribute of family history. Such affidavits may be based solely on the maker’s knowledge, but may also be supported by records and sources maintained by the Department of the Interior - Bureau of Indian Affairs, such as B.I.A. Trust Asset and Accounting Management System (TAAMS) title records and Title Status Reports, Certificate of Degree of Indian Blood (C.D.I.B.) cards issued by the B.I.A., information from the Dawes Rolls, or other probative records maintained by the applicable tribal government.

The original standard recommended by the Report of the 1986 Title Examination Standards Committee, 57 O.B.J. 2677 (1986). It was approved by the Real Property Section, November 19, 1986, and adopted by the House of Delegates, November 20, 1986. For the statement of the standard previously, see 56 O.B.J. 2535 (1985).

The 1996 Report of the Title Examination Standards Committee, 67 O.B.J. 3247, 3250 (1996), recommended revising this standard for purposes of clarification and to respond to legislative amendments to Title 16, Oklahoma Statutes. The Real Property Law Section approved the revision on November 14, 1996, and the House of Delegates adopted it on November 15, 1996.

The 2001 Report of the Title Examination Standards Committee recommended amending the Authority and Comment to Standard 3.2 to acknowledge the passage of 16 O.S. § 67 addressing affidavits of heirship applicable to severed mineral interests. 72 O.B.J. 3002 (Oct. 13, 2001). The Real Property Law Section approved the addition on November 15, 2001 and the House of Delegates adopted it on November 16, 2001. 72 O.B.J. 3576 (Dec. 8, 2001).

The 2013 Report of the Title Examination Standards Committee recommended amending this Standard to establish guidelines for the use of Affidavits to establish marketable title to severed mineral interests. The Real Property Law Section approved the amendment on November 14, 2013 and the House of Delegates adopted it on November 15, 2013.

The 2020 Title Examination Standards Sub-Committee of the Real Property Law Section recommended Standard 3.2(A) be amended as follows to clarify affidavits cannot be used in place of an estate administration and to clairfy that an affidavit related to severed minerals as provided in 16 O.S. §67 is an exception to 3.2(A).. The Real Property Section approved the proposal, and the House of Delegates adopted the amendment on November 13, 2020. (superseded document available)

The 2024 Title Examination Standards Sub-Committee of the Real Property Law Section recommended a new comment 8 be added to Standard 3.2 to assist title examiners with understanding affidavits and recitals regarding lands maintained by Bureau of Indian Affairs.The Real Property Section approved the proposal, and the House of Delegates adopted the amendment on July 12, 2024. (superseded document available)