Mineral Law: 4 Things to Know about Probating Minerals

Here's some helpful information about navigating a mineral probate.

With the boom in the Bakken, many individuals have received letters from oil companies referencing long-forgotten minerals and the need to probate an ancestor’s estate, often many years after they passed away.

Probate is a complicated process normally, but having to navigate mineral law muddles it even further. Add on many years, lost documents, and multiple heirs and the prospect can seem overwhelming. 

Here are four things to keep in mind about mineral law before you begin the process:

1. You might have to open more than one probate.

Just because great-grandpa owned minerals that doesn’t mean you can immediately start getting a royalty check after probating his estate. You might have to probate grandpa’s and dad’s estates too. The reason for this is because an individual’s heirs are the people who are living at the time of their death, not necessarily the people who are currently living. So, according to mineral law, if great-grandpa’s heir when he passed away was great-grandma, you have to probate her estate too—and so on until the title has been cleared. 

2. You need more than an oil and gas lease or letter from an oil company.

A lease or a letter from an oil company listing the county and legal description of the decedent’s mineral interests is a great start. Unfortunately, it’s not enough to actually prove ownership. Sometimes things can be mixed up and an oil company can say your dad owned the minerals when in reality the title is still tied up in grandpa’s estate. The only way to truly prove that the decedent actually owned the mineral interests is with a conveyance document such as a mineral deed, but….

3. …sometimes a deed isn’t good enough either.

All a deed tells us is that that person once owned those minerals—it doesn’t tell us that they still did upon their death or that the minerals haven’t been lost since then to a surface owner claim. If you find an old mineral deed in grandpa and grandma’s basement, that doesn’t mean that they still owned them when they passed away. The only way then to know for sure is to have a mineral search and title opinion completed. 

4. Getting paid doesn’t mean it’s ok.

Sometimes an oil company can make a mistake and you might start receiving royalty checks on minerals your family member owned without ever completing probate. This seems like good news but it likely won’t be permanent. While you chalk up the checks to good luck, a few months or years down the road the oil company could review its files, notice that a probate was never completed, and hold your future checks in suspense until probate is complete. As soon as you are aware that a deceased relative owned mineral interests, you should discuss with an attorney whether or not probate is necessary.

Probate—particularly a mineral probate—can feel overwhelming but it doesn’t have to be. If you are dealing with mineral law and facing the need for a mineral probate or are wondering if one is necessary, give us a call at 701-852-5224 and let us help you navigate the process.