I have been a landman since 2006, and if there's one thing I've learned, it's the importance of estate planning. Estate planning is figuring out what is going to happen to your assets (and your corpse) after you die. A lot of people don't worry about it because they don't think they have any assets. But it is possible to have assets and not know it. Let me explain.
If you don't have a Will, then when you die, your assets go to your living heirs according to the laws of descent and distribution in your state. These laws differ from state to state, but they're pretty similar. If you're married and have kids, they might all go to your spouse, all to your children, or divided between them.
But suppose you don't have kids or a spouse. In that case, they go back to your parents. If your parents are dead (and they probably are by the time you die), then it goes to your brothers and sisters or to their children if they are dead.
Now, let me share a situation I've been dealing with lately to explain to you why it is important to have a Will and to file an affidavit of heirship for your deceased parents and/or grandparents. First, let me explain a little about how mineral ownership works.
Land, and the minerals that lie in and under the land (e.g. coal, oil, gas, gold, uranium, copper, etc.), can be divided into separate estates. What I mean is that it's possible to own the surface of a piece of land while somebody else owns the minerals. In fact, that's normal. In most states, only the surface owner pays taxes. If you own the oil and gas, but not the surface, and there's no well producing oil or gas, then you probably don't have to pay taxes. Again, these laws differ from state to state.
That means several generations can go by, each inheriting the oil and gas, without the descendants even knowing they own the oil and gas. If their parents owned the oil and gas, and they never leased it, paid any taxes on it, or did anything with it, they might just forget all about it and neglect to inform their children. Their children have no idea they inherited it, and their children are even less aware.
Okay, here's the situation I'm dealing with right now. I researched the title (both surface and mineral) of a piece of land in which a man back in the 1930's owned the minerals. I was able to find, through courthouse records, how he acquired his interest. But then, as I was searching for him in the indexes, he just disappeared. There was no affidavit of heirship, and there was no Will or Probate record. Where did his minerals go?
It turns out, he died in another state. He had no wife or children. You'd think his interest would go to his siblings, but oh no! It was not that simple. He was an only child. That means his interest went back to both his maternal grandparents and his paternal grandparents, then it trickled down to their remaining descendants. So all these distant cousins of the man inherited his minerals.
Do you think they knew about it? Of course not. They had no idea. And since that was so long ago, they are all deceased. Their descendants have inherited the minerals. And, of course, none of them know about it.
My job, now, is to find these descendants by looking up obituaries and whatever information I can find on Ancestry, Find-A-Grave, Family Search, or wherever else. Once I find them, I have to persuade them to help me create an affidavit of heirship to file in the courthouse in the county where these minerals are.
The problem is that most of these people have never dealt with this sort of thing before. A lot of them think I'm some Nigerian scam artist, and they don't want to talk to me. It takes a lot of persuasion and explaning to get them just to believe me.
I have managed to persuade some people that I'm legitimate, but now there's another problem. A lot of these people I'm trying to contact are the great-grandchildren or even great-great-grandchildren of the people for whom we need affidavits of heirship. An affidavit of heirship is supposed to include information about when and where the person died, whether they had a Will or probate record, and who all their heirs are. The great-grandchildren usually have no idea if their great-grandparent had a Will or whether that Will was admitted to Probate. It's nearly impossible just to create an affidavit of heirship because none of the living descendants can answer the questions I have to answer to fill out the affidavit.
That is why it's important to have an estate plan and to file an affidavit of heirship for your deceased parents or grandparents. You might own minerals in some county in a different state and not even know it. A Will removes all ambiguity about who will inherit whatever assets you own. In the absense of a Will, an affidavit of heirship can establish who your heirs are so the laws of descent and distribution can apply. Something filed in the courthouse, either where you live or where the minerals are located, can establish legal title. You may not ever do anything with your minerals, but your descendants might want to sell them, lease them, or include them in their Wills. They can't do that if they don't even know they own anything.
Moreover, if some energy company wants to mine coal or drill for oil and gas, they have to be able to find who owns the minerals so they can negotiate a lease agreement. If your grandchildren own the minerals, but they can't be found because you didn't have a Will, and nobody filed an affidavit of heirship for you, then your poor grandchildren will miss out on any lease bonuses or royalties they might've been paid. Don't do that to them.
When your parents die, you should file an affidavit of heirship even if they have a Will. Wills are not always admitted to Probate, and some states require them to be admitted to probate before title to land or minerals can be vested. You should file an affidavit of heirship at least in the county where your parents or grandparents lived. The affidavit should state when and where they died, whether they had a Will, whether that Will was admitted to Probate, who the survivors were (e.g. spouse, children, etc.), where they live, and whether they were precedeased by any spouse or children, and if so, whether there are any living grandchildren, and where they are.
If you know your parents or grandparents owned land or minerals in various counties, you should file a copy of the affidavit of heirship in the county clerk's office of every courthouse in every county in which they owned land or minerals. The affidavit should cite the Cause No. of the Probate case (if there is one) in whatever county their estate in being probated in (usually where they lived when they died). This will make everybody's life a lot easier, possibly for hundreds of years into the future.
You don't want generations to go by without anybody ever filing an affidavit of heirship because then you'll end up with the situation I'm dealing with where none of the living descendants know whether their great-grandparents had a Will, or sometimes even who all of their children were. Not everybody knows who their great-aunts and uncles were, much less where they lived. When I talk to people, I often know more than they do about their family history.
Having an estate plan will make things much easier on your heirs after you die. Everybody should have one, even if you don't think you own a lot of assets. You don't know when you're going to die. You don't even necessarily know what you own. And if you have some complicated family involving multiple marriages, step children, foster children, adopted children, or children with questionable lineage, having an estate plan simplifies things by removing ambiguity about who will inherit your stuff. You will be doing all of your heirs a favour by having an estate plan.
Besides helping your family out by having an estate plan, you'll be helping out the poor landmen who have to unravel surface and mineral title years down the road. Please, think of the landmen!
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