A common issue that arises in establishing title occurs when a mineral owner dies and has not provided for how those mineral interests should be transferred upon their death. Each state has enacted legislation that steps in and determines who inherits from a person who has died intestate. Intestacy occurs when a deceased individual has died without making a will. In creating the chain of title, it is important to understand what impact these various intestacy laws may have on the mineral rights in order to accurately determine who will inherit.
The process is generally much simpler if the decedent died with a will. When an individual has left a will, the probate court will prove the will to be authentic or valid in a court of law and approve the distribution of minerals interests. Oil and gas interests, if not specifically provided for in the will, will generally pass through the residuary clause of a will. However, the will needs to be probated in a court that has jurisdiction over the interest.
However, if no will is submitted to probate or no will is accepted by the court, then the estate will pass by the laws of decent and distribution of the state in which the property is located. The estate will still need to be submitted to the Probate court, but the court will identify the statutory heirs. Estates that are not probated can create an issue for the Division Order Analysts, as it leads to a cloud on the title to property once owned by the deceased.
In Texas, for individuals that died after September 1, 1993, the relevant statutes for determining intestate proceedings are Texas Estate Code §§ 201.001 to 201.003. Mineral rights are a form of real property and will therefore be governed by the same laws of marital property and as other real estate. There are three other primary factors that affect how property is distributed by intestacy in Texas: the marital status of the decedent, whether the decedent had any children or descendants, and lastly, whether the property is separate or community property. A spouse’s separate property includes property brought into the marriage, as well as property acquired during the marriage by gift, will, or inheritance. If the mineral rights were acquired during marriage, then they are community property.
In the most common situation, if the decedent was a married person with children or other descendants and the mineral interests were part of the decedent’s separate real property, then a life estate will be created whereby the surviving spouse takes a one-third life estate and children take all equally, subject to the surviving spouse’s one-third life estate. However, under the same scenario where the individual is married and with biological children, if the mineral interest is part of the community property, then the spouse will receive the deceased spouse’s interest.
It should be noted that in the case that the decedent is survived by a spouse and a child or other descendant who is not also a child of the surviving spouse, then the decedent’s share of community property, or mineral rights acquired during the marriage, will be distributed all to the children who take equally.
If decedent has no descendants or parents, then the surviving spouse will inherit the entirety of the decedent’s probate estate.
In the case that the decedent is survived by a spouse and parents but with no children, then the surviving spouse will inherit all of decedent’s separate personal property and community property. The spouse will receive one-half of the real property with the parents receiving the remainder.
If the person is an unmarried individual with children, the children will receive the entirety of the estate equally.
If at the time, the individual was unmarried and had no descendants, then the distribution will depend on who has survived the descendant. If the decedent is survived by both mother and father then half is distributed to the mother and half to the father. If the decedent is survived by only one parent, then the parent will receive it in its entirety. If the decedent is not survived by a spouse, any descendants, or their parents, the estate be distributed to any living siblings of the decedent.
This link provides useful visual aids in determining how the mineral interests would pass through the intestate process in Texas.
However, because the laws in effect at the time an individual’s death will determine how their interests and estate should pass, it is also important for landman to consider prior law as well. As stated earlier, the descent and distribution described above applies to individuals who died on or after September 1, 1993. However, in order to determine ownership for individuals who died prior to September 1, 1993, the previous law will have to be applied.
For a married individual with children who died before September 01, 1993, the decedent’s community real property will be distributed with entirely to the children equally, while the spouse keeps their half of the community interest. The current law distinguishes between children born in and out of the decedent and surviving spouse’s marriage. If any children or descendant of the deceased spouse is not a child or descendant of the surviving spouse, then the old rule applies, and the children will inherit equally. If the children are all also children of the surviving spouse, then the surviving spouse will inherit the decedent’s share of the community property.
[Example 1: If Joseph died before September 01, 1993, then his children will inherit his 50% interest in any mineral rights that were community property. However, if Joseph died after September 01, 1993, and all his children were also children of his surviving spouse, Betty, then Betty will inherit Joseph’s 50% interest in any mineral rights that were community property. However, if Joseph had a child from a prior marriage, then Betty will retain her 50% interest and the children will equally share in Joseph’s 50% share of the mineral rights.]
The list below provides intestacy probate statutes by state:
Statutory Code: Alabama Code §§ 43-8-40 to 43-8-58
Statutory Code: Alaska Statutes §§ 13.12.101 to 13.12.114
Statutory Code: Arizona Revised Statutes §§ 14-2101 to 14-2114
Statutory Code: Arkansas Title §§ 28-9-201 to 28-9-220
Statutory Code: California Probate Code §§ 6400 to 6414
Statutory Code: Colorado Revised Statutes §§ 15-11-101 to 15-11-122
Statutory Code: Connecticut General Statutes §§ 45a-437 to 45a-438
Statutory Code: Delaware Code, Title 12, §§ 501 to 511
District of Columbia
Statutory Code: District of Columbia Code §§ 19-301 to 19-322
Statutory Code: Florida Statutes §§ 732.101 to 732.111
Statutory Code: Georgia Code §§ 53-2-1 to 53-2-8
Statutory Code: Hawaii Revised Statutes Annotated §§ 560:2-101 to 560-2-114
Statutory Code: Idaho Code §§ 15-2-101 to 15-2-114
Statutory Code: Illinois Statutes §§ 5/2-1 to 5/2-5d
Statutory Code: Indiana Code §§ 29-1-2-1 to 29-1-2-15
Statutory Code: Iowa Code §§ 633.122 to 633.226
Statutory Code: Kansas Statutes §§ 59-501 to 59-114
Statutory Code: Kentucky Statutes §§ 391.010 to 391.170
Statutory Code: Louisiana Civil Code Articles 880 to 899
Statutory Code: Maine Revised Statutes, Title 18-A, Article 2 §§ 2-101 to 2-114
Statutory Code: Maryland Code §§ 3-101 to 3-112
Statutory Code: Massachusetts General Laws, Chapter 190B, Article II
Statutory Code: Michigan Compiled Laws §§ 700.2101 to 700.2114
Statutory Code: Mississippi Code, §§ 91-1-1 to 91-1-31
Statutory Code: Missouri Statutes §§ 474.010 to 474.110
Statutory Code: Montana Code §§ 72-2-111 to 72-2-114
Statutory Code: Nebraska Statutes §§ 30-2301 to 30-2312
Statutory Code: Nevada Revised Statutes §§ 134.010 to 134.210
Statutory Code: New Hampshire Revised Statutes §§ 561:1 to 561:21
Statutory Code: New Jersey Statutes §§ 3B:5-1 to 3B:5-14.1
Statutory Code: New Mexico Statutes §§ 45-2-101 to 45-2-114
Statutory Code: New York Estates, Powers & Trusts Law §§ 4-1.1 to 4-16
Statutory Code: North Carolina General Statutes §§ 29-1 to 29-30
Statutory Code: North Dakota Century Code §§ 30.1-04-01 to 30.1-04-21
Statutory Code: Ohio Revised Statutes §§ 2105.01 to 2105.39
Statutory Code: Oklahoma Statutes, Title 84, §§ 211 to 213
Statutory Code: Oregon Revised Statutes §§ 112.015 to 112.830
Statutory Code: Pennsylvania Statutes and Consolidated Statutes, Title 20, §§ 2101 to 2110
Statutory Code: Rhode Island General Laws §§ 33-1-1 to 33-1-11
Statutory Code: South Carolina Code §§ 62-2-101 to 62-2-114
Statutory Code: South Dakota Codified Laws Annotated §§ 29A-2-101 to 29A-2-114
Statutory Code: Tennessee Code §§ 31-2-101 to 31-2-110
Statutory Code: Texas Estates Code Annotated §§ 201.001 to 201.003
Statutory Code: Utah Code Annotated §§ 75-2-101 to 75-2-114
Statutory Code: Vermont Statutes Annotated, Title 14, § 301
Statutory Code: Virginia Code Annotated § 64.2-200
Statutory Code: Washington Revised Code Annotated § 11.05.015
Statutory Code: West Virginia Code Annotated §§ 42-1-2 to 42-1-3a
Statutory Code: Wisconsin Statute Annotated §§ 852.01 to 852.14
Statutory Code: Wyoming Statute Annotated §§ 2-4-101 to 2-4-108
 Jeff Silver, Estates, Probates and Intestates.
 Tex. Est. Code Ann §§ 201.001 to 201.003 (West).
 See Texas Family Code, Sec. 5.01(b).
 Id. at § 201.003(c).
 Id. at §§ 201.001(c) to 201.002(c)(3).
 Id. at § 201.001(b).
 Id. at § 201.001(c).
 Id. at § 201.001(d)(1).
 Id. at § 201.001(e).
 Ronald Lipman, 12 Changes to the Texas Probate Code That Every Attorney Should Know, 33 Hous. Law. 30 (JULY/AUGUST 1995).
 Tex. Prob. Code Ann. Sec. 45 (Vernon Supp. 1993).
 Lipman, supra note 9, at 30.