Title 58. Probate Procedure
§58-1. Probate jurisdiction and venue of district court.
A. The district court has probate jurisdiction, and the judge thereof power, which must be exercised in the cases and in the manner prescribed by statute:
1. To open and receive proof of last wills and testaments, and to admit them to proof and to revoke the probate thereof, and to allow and record foreign wills;
2. To grant letters testamentary, of administration and of guardianship, and to revoke the same;
3. To appoint appraisers of estates of deceased persons and of minors and incapacitated persons;
4. To compel personal representatives and guardians to render accounts;
5. To order the sale of property of estates, or belonging to minors or to incapacitated persons;
6. To order the payments of debts from estates or guardianships;
7. To order and regulate all distribution of property or estates of deceased persons;
8. To compel the attendance of witnesses and the production of title deeds, papers, and other property of an estate, or of a minor, or incapacitated persons;
9. To exercise all the powers conferred by this chapter or by other law;
10. To make such orders as may be necessary to the exercise of the powers conferred upon it; and
11. To appoint and remove guardians for infants, and for persons insane or who are otherwise incapacitated persons; to compel payment and delivery by them of money or property belonging to their wards, to control their conduct and settle their accounts.
B. The district court which has jurisdiction and venue of the administration of any estate is granted jurisdiction and venue to cause Oklahoma and federal estate taxes to be equitably apportioned and collected.
C. The district court which has jurisdiction and venue of the administration of any estate is granted unlimited concurrent jurisdiction and venue to hear and determine:
1. In whom the title to any property is vested, whether the property is real, personal, tangible, intangible, or any combination thereof;
2. Rights with respect to such property as to all persons and entities;
3. Whether or not such property is subject to the jurisdiction of the court in the decedent's estate; and
4. Issues relating to trusts or issues involving a guardian or ward that may arise.
D. For proceedings under subsection C of this section, service of notice and process shall be required as in other cases and the provisions of the Oklahoma Pleading Code, Section 2001 et seq. of Title 12 of the Oklahoma Statutes, shall be followed.
R.L. 1910, § 6189. Amended by Laws 1953, p. 232, § 1; Laws 1963, c. 98, § 1, emerg. eff. May 27, 1963; Laws 1989, c. 276, § 1, eff. Nov. 1, 1989; Laws 1995, c. 253, § 6, eff. Nov. 1, 1995; Laws 1997, c. 224, § 2, eff. Nov. 1, 1997; Laws 2001, c. 58, § 1, eff. Nov. 1, 2001.
§585. Venue of probate acts.
Wills must be proved, and letters testamentary or of administration granted in the following applicable situations:
1. In the county of which the decedent was a resident at the time of his death, regardless where he died.
2. In the county in which the decedent died, leaving an estate therein, the deceased not being a resident of this state.
3. In the county in which any part of the estate of the deceased may be, where the decedent died out of this state, and the decedent was not a resident of this state at the time of his death.
4. In the county in which any part of the estate may be and the decedent was not a resident of this state, but died within it, and did not leave an estate in the county in which he died.
5. In all other cases, in the county where application for letters is first made.
Amended by Laws 1982, c. 176, § 1, emerg. eff. April 16, 1982.
§586. Venue in certain cases.
When the estate of the decedent is in more than one county, he having died out of the state, and not having been a resident thereof at the time of his death, or being such nonresident and dying within the state, and not leaving estate in the county where he died, the district court of that county in which application is first made for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate.
R.L.1910, § 6194.
§587. Jurisdiction coextensive with state.
The district court of the county in which application is first made for letters testamentary or of administration in any of the cases above mentioned, shall have jurisdiction coextensive with the State in the settlement of the estate of the decedent and the sale and distribution of his real estate and excludes the jurisdiction of the district court of every other county.
R.L.1910, § 6195.
§588. Transfer of old matters authorized.
When it is made to appear that any probate matter pending in any court of this state which, by acts of Congress and the Constitution, was transferred from the courts of the Territory of Oklahoma and the United States courts in the Indian Territory to the courts of this state, is not in the county where the venue of such suit, matter or proceeding would lie if arising after the admission of this state into the Union, the court where such suit, matter or proceeding is pending shall, upon the application of the guardian, executor or administrator, or any other person having a substantial interest therein, or upon its own motion, when a proper showing has been made for a removal, within twenty (20) days after application is made therefor, make an order transferring such suit, matter or proceeding to the county where the venue would properly lie if such suit, matter or proceeding had arisen since the admission of this state into the Union, by transmitting to such county the original papers, together with certified copies of all orders and judgments, upon the payment of all accrued costs: Provided, that where any minor is the owner of an estate situate in a county or in counties other than that of his domicile and a guardian or curator has heretofore been appointed for such minor or his estate in any such county other than that of the domicile of such minor, such suit, matter or proceedings shall be transferred in the manner and upon the conditions herein provided, to the county of the domicile of such minor; And provided, further, that such original papers, together with such certified copies of all orders and judgments, shall be filed in the court to which such matter is removed, and the same shall proceed as if ordinarily filed therein, without further service of notice.
R.L.1910, § 6196.
§589. Transfers already made legalized.
All transfers of records, suits or proceedings of a probate nature which, by Acts of Congress and the Constitution, were transferred from the Territory of Oklahoma and the United States courts in the Indian Territory to the courts of this state, and thereafter transferred to another county, where such county would have been the proper venue had such suit, matter or proceeding, been commenced after the admission of this state into the Union, are hereby legalized; and no sale or other proceeding by the court to which such suit, matter or proceeding has been transferred shall be void because of such transfer.
R.L.1910, § 6197.
§5810. Transfer to county of domicile of minor or ward.
In any case where it is shown to the court that the domicile of a minor or ward has been changed from the county where the guardianship is pending to another county in this state, the guardianship may, upon application verified by oath, after notice has been given to the next of kin of such minor or ward and upon good cause shown, be removed to such other county, which would be the proper venue, in the manner and upon the conditions prescribed in the second preceding section for the transfer of suits, matters or proceedings if the court finds that the domicile of the minor or ward has been changed in good faith and that such transfer would be for the best interest of such minor or ward.
R.L.1910, § 6198.
§5811. Personal representative defined.
As used in this title, "personal representative" includes executor, administrator, administrator with will annexed, conservator, guardian and persons who perform substantially the same function under the law governing their status and includes a successor personal representative appointed to succeed a previously appointed personal representative.
Laws 1980, c. 310, § 1, eff. Oct. 1, 1980.
§5821. Custodian of will to deliver same to district court.
Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the district court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by any one injured thereby.
R.L.1910, § 6199.
§5822. Who may petition court for proof of will.
Any executor, devisee or legatee named in a will, or any other person interested in the estate, may at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the state, or a nuncupative will.
R.L.1910, § 6200.
§5823. Requisites of petition for probate.
A petition for the probate of a will must show:
1. the jurisdictional facts;
2. whether the person named as executor consents to act, or renounces his right to the letters testamentary;
3. the names, ages, and residence of the heirs, legatees, and devisees of the decedent, so far as known to the petitioner;
4. the probable value and character of the property of the estate;
5. the name of the person for whom letters testamentary are prayed.
The petition for the probate of a will must be in writing and signed by the applicant or his counsel.
No defect of form, or in the statement of jurisdictional facts actually existing, shall make void the probate of a will.
R.L.1910, § 6201; Laws 1963, c. 102, § 1, emerg. eff. May 27, 1963.
§5824. Court may compel production of will by one having possession.
If it be alleged in the petition that the will is in the possession of a third person and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it in the court at the time named in the order. If he has possession of the will and neglects or refuses to produce it in obedience to the order, he may by warrant of the court be committed to the jail of the county, and kept in close confinement until he produces it.
R.L.1910, § 6202.
§5824.1. Preservation of original will Removal from custody.
Upon the filing of a petition for the probate of a will and upon the production of the will, the clerk of the district court shall safely preserve the original will and shall not permit it to be removed from the county courthouse building until after a photographic, photostatic or certified copy thereof has been filed in the court; provided, however, that after such copy is prepared and filed, the judge of the district court may, for good cause shown and upon written order filed with the court clerk, permit the original will to be removed from the courthouse building.
Laws 1965, c. 231, § 1.
§5825. Hearing Notice, how given.
When a petition for probate of a will is filed, the court must fix a day for hearing the petition, not less than ten (10) nor more than thirty (30) days from the date of filing of the petition, and if the names and addresses of all heirs, legatees, and devisees of the testator are known to the petitioner and are set out in the petition, the court shall cause notice of such hearing to be given as provided in Section 34 of this title, by mailing copies of the notice to all heirs, legatees, and devisees, other than devisees and legatees whose devises and bequests are conditioned upon another named person's predeceasing the testator in accordance with terms stated in the will and such named person did not predecease the testator in accordance with terms stated in the will, postage prepaid, at their lastknown place of residence not less than ten (10) days prior to the date of the hearing; provided, however, if the name or address of one or more heirs, legatees, or devisees of the testator is not known to the petitioner, or if one or more heirs, legatees, or devisees of the testator are alleged to have survived the testator but died prior to the filing of the petition and the petitioner alleges that he knows of no personal representative for the decedents' estates, notice of the hearing of the petition shall be given by mailing, as above provided, and, in addition thereto, the notice shall be published in one issue of a newspaper, and in such case the hearing shall not be less than ten (10) days from the date of publication of the notice. For purposes of this section, if a legatee or devisee is the trustee of an express trust or testamentary trust, notice need be given only to the trustee and not to the beneficiaries of the trust unless the beneficiaries are otherwise entitled to notice as heirs or as legatees or devisees of property not devised or bequeathed to the trust.
R.L. 1910, § 6203; Laws 1953, p. 232, § 2; Laws 1963, c. 99, § 1, emerg. eff. May 27, 1963; Laws 1967, c. 178, § 1, emerg. eff. May 1, 1967; Laws 1969, c. 302, § 1, eff. Jan. 1, 1970; Laws 1970, c. 218, § 1, emerg. eff. April 15, 1970; Laws 1993, c. 345, § 5, eff. Sept. 1, 1993.
§5826. Heirs, legatees, devisees and executors to be given notice by mail.
Written or printed copies of the notice of the time appointed for the probate of the will, must be addressed to the heirs, legatees and devisees of the testator, at their places of residence, if known to the petitioner, and deposited in the post office, with the postage thereon prepaid by the petitioner, at least ten (10) days before the hearing; the notice must be issued by the judge over the seal of the court. Proof of the mailing of the notice must be made at the hearing; the same notice and proof of service thereof on the person named as executor must be made if he be not the petitioner; also on any person named as coexecutor, not petitioning, if his place of residence be known.
R.L.1910, § 6204; Laws 1953, p. 233, § 3.
§5827. Powers of judge at chambers.
The judge of the district court may, at any time, receive petitions for the probate of wills, make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses, hear petitions, trials of issues, admit wills to probate, and do all other things coming under his probate jurisdiction.
R.L.1910, § 6205.
§5828. Proof of notice Waiver of notice.
At the time appointed for the hearing, or at the time to which the hearing may have been postponed, the court, unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will. If such notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain. The appearance in court of parties interested is a waiver of notice.
R.L.1910, § 6206; Laws 1951, p. 161, § 1.
§5829. Contest before probate Persons entitled.
Any person interested may appear and contest the will. Devisees, legatees or heirs of an estate may contest the will through their guardians or attorneys appointed by themselves, or by the court for that purpose; but a contest made by an attorney appointed by the court does not bar a contest, after probate, by the party so represented, if commenced within three (3) months from the date the will was admitted to probate; nor does the nonappointment of an attorney by the court of itself invalidate the probate of a will.
R.L.1910, § 6207; Laws 1953, p. 233, § 4; Laws 1967, c. 136, § 2, emerg. eff. April 27, 1967.
§5830. Admission on testimony of one subscribing witness.
If no person appears to contest the probate of a will, the court may admit it to probate on the testimony or affidavit given after the will has been filed of one of the subscribing witnesses only if satisfied from the testimony or affidavit of such witness that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution. This section shall not apply to selfproved wills as described in Title 84 O.S., Section 55.
R.L.1910, § 6208; Laws 1976, c. 159, § 2, eff. Oct. 1, 1976.
§5831. Olographic will, how proved.
An olographic will may be proved in the same manner that other private writings are proved.
R.L.1910, § 6209.
§5832. Notices required to be published once each week for two or more consecutive weeks Interval.
When notice is required by this act to be published once each week for two (2) or more consecutive weeks, the interval between the first publication and each successive publication shall be not less than six (6) days.
Laws 1969, c. 302, § 36, eff. Jan. 1, 1970.
§5833. "Newspaper" defined.
Wherever the term "newspaper" appears herein, it shall mean newspaper as defined by 25 O.S.1961, Sec. 106, as amended by Section 1, Chapter 63, O.S.L.1967 (25 O.S.Supp.1968 Section. 106), and by House Bill No. 1253, First Session, Thirtysecond Legislature of the State of Oklahoma.
Laws 1969, c. 302, § 37, eff. Jan. 1, 1970.
§58-34. Mailing and proof of mailing - Persons authorized to make.
When mailing is required by Section 21 et seq. of this title, the mailing shall be made by the court clerk or a deputy court clerk or by the attorney for the party and proof of the mailing shall be by affidavit of the court clerk or deputy court clerk or attorney filed in the case. Any mailing made pursuant to this section after June 22, 1988, which is in compliance with the provisions of this section at the time this act becomes effective, shall be deemed to be in compliance with this section.
Added by Laws 1969, c. 302, § 38, eff. Jan. 1, 1970. Amended by Laws 1988, c. 228, § 1, emerg. eff. June 22, 1988; Laws 1995, c. 286, § 11, eff. July 1, 1995.
§58-41. Proceedings on contest.
If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the county interested in the estate, any one or more of whom may demur thereto upon any of the grounds of demurrer allowed by law in civil actions. If the demurrer be sustained, the court must allow the contestant a reasonable time, not exceeding ten (10) days, within which to amend his written opposition. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving:
1. The competency of the decedent to make a last will and testament.
2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud, or undue influence.
3. The due execution and attestation of the will by the decedent or subscribing witnesses; or,
4. Any other questions substantially affecting the validity of the will must be tried and determined by the court.
On the trial the contestant is plaintiff, and the petitioner is defendant.
R.L. 1910, § 6210.
§5842. Judgment Recording.
The district court, after hearing the evidence on petitions for the probate of wills, must set forth its findings of fact and conclusions of law in writing and render a judgment based upon such findings, either admitting, or refusing to admit, the will to probate. The judgment and the will must be recorded where the will is admitted to probate.
R.L.1910, § 6211; Laws 1965, c. 205, § 1.
§5843. Witnesses on trial of contest Depositions.
If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county, and are not present at the time appointed for proving the will, or although such witnesses reside in the county and are insane or incompetent, and such facts are first made to appear to the court, either in contested or noncontested will cases, the court may admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will and, as evidence of the execution, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them. Provided that when the testimony of any nonresident witness or witnesses residing out of the county wherein any will is sought to be admitted to probate, may be desired, touching the execution of such will, either in contested or noncontested will cases, it shall be lawful for the party seeking to have such will admitted to probate, or resisting the same in the district court, to cause the deposition of such witness to be taken in like manner, as now is or hereafter may be provided in civil cases; and the court may, in its discretion, direct the original of such will to be attached to any commission issued in such case; and the deposition of any such witness taken, certified and returned, according to law, shall be of like force and effect as if his testimony had been heard in the court; provided, that before any such original will shall be suffered to be attached to any such commission, a photostatic or certified copy thereof shall be made and examined, and certified by the judge to be a true copy of the original, and until the return of such original, such copy shall be retained in the office of the judge, in lieu of such original will; and if such will be admitted to probate, the same may, in case of the loss or destruction of the original thereof, be recorded from such certified copy. Provided, further, that in all cases where wills have heretofore been proved in substantial compliance with the provisions hereof, such proof is hereby validated.
R.L.1910, § 6212; Laws 1931, p. 6, § 1.
§5844. Recording of testimony Admissibility.
The testimony of any witness or witnesses admitted at a hearing on a petition to probate a will shall be recorded in one of the following methods:
(a) filing with the court clerk a written summary of the testimony, subscribed and sworn to by each witness in the presence of a judge having jurisdiction of probate matters; or
(b) having the testimony taken down verbatim in shorthand, stenotype, or any other method approved by the court; or
(c) having the testimony recorded verbatim by a sound recorder approved by the court; or
(d) having the testimony recorded verbatim by an official court reporter.
If the testimony is recorded by one of the methods described in subdivisions (b) or (c), the same shall be transcribed, subscribed and sworn to by each witness, and filed with the court clerk. If the testimony is recorded by the method described in subdivision (d), the same shall be transcribed and certified by the official court reporter who took the testimony, and filed with the clerk of the court. Such evidence shall be admissible in any subsequent proceedings concerning the validity of the will, or the sufficiency of the proof if the subscribing witness is dead, or has permanently left this state.
R.L. 1910, § 6213; Laws 1965, c. 340, § 1, emerg. eff. June 28, 1965; Laws 1974, c. 26, § 1, emerg. eff. April 11, 1974; Laws 1992, c. 395, § 4, eff. Sept. 1, 1992.
§5851. Foreign wills recorded.
Every will duly proved and allowed in any of the territories, or in any of the United States or the District of Columbia, or in any foreign country or state, may be allowed and recorded in the district court of any county in which the testator shall have left any estate, or any estate for which claim is made.
R.L.1910, § 6216.
§58-52. Petition - Hearing - Notice - Summary administration.
A. When a copy of the will and the order or decree admitting same to probate, duly certified, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing, notice whereof must be given as provided for an original petition for the probate of a will.
B. Regardless of the value of the estate, any will admitted to probate in another jurisdiction may be admitted to probate and administered under the procedures prescribed pursuant to Section 241 or 245 of this title.
R.L. 1910, § 6217. Amended by Laws 1953, p. 233, § 5; Laws 1975, c. 265, § 1, eff. Oct. 1, 1975; Laws 1998, c. 359, § 4, eff. Nov. 1, 1998; Laws 2002, c. 468, § 77, eff. Nov. 1, 2002.
§5853. Proof required.
If, on the hearing, it appears upon the face of the record that the will has been proved, allowed and admitted to probate in any of the territories, or any state of the United States, the District of Columbia, or in any foreign country or state, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, be certified in like manner according to the facts, and recorded, and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration issued thereon.
R.L.1910, § 6218.
§5861. Causes for contesting will after probate.
When a will has been admitted to probate, any person interested therein may at any time within three (3) months from the date the will was admitted to probate contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:
1. That a will of a later date than the one proved by the decedent, revoking or changing the will, has been discovered, and is offered; or
2. That some jurisdictional fact was wanting in the probate; or
3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or 4. That the will was not duly executed and attested.
R.L.1910, § 6219; Laws 1953, p. 233, § 6; Laws 1967, c. 10, § 1, emerg. eff. Feb. 20, 1967.
§5862. Citations issued to whom.
Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the state, so far as known to the petitioner, or to their guardian, if any of them are minors or adjudicated incompetents, or their personal representatives, if any of them are dead, requiring them to appear before the court on some day therein specified, to show cause why the probate of the will should not be revoked. A copy of such citation shall be mailed to all such persons, nonresidents of the state, whose addresses are known to petitioner, at least ten (10) days before such hearing.
R.L.1910, § 6220; Laws 1953, p. 234, § 7.
§5863. Petition and notices when another will offered.
If another will be offered by the petition, it must show all that is required in the original case of a petition for the probate of a will, and notice must be given as required before the hearing of proof of any will originally: Provided, that such notice need not be given to any persons upon whom the citation required in the preceding section is to be served.
R.L.1910, § 6221; Laws 1969, c. 302, § 2, eff. Jan. 1, 1970.
§5864. Hearing and judgment New will, admitting to probate.
At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon the persons named therein, and the required publication, posting and service of the notices having been made, and all duly proved, the court must proceed to try the issues joined in the same manner as in an original contest of a will. If upon hearing the proofs of the parties the court shall decide that the will is, for any of the reasons alleged, invalid, or that it is not proved to be the last will of the testator, the probate must be annulled and revoked; and if the court shall decide that the new will is valid, it may admit the same to probate in the same manner as originally upon the probate of a contested will.
R.L.1910, § 6222.
§5865. Result of revocation.
Upon the revocation being made, the powers of the executor or administrator with the will annexed, must cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation.
R.L.1910, § 6223.
§5866. Costs of contest.
The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate be confirmed. If the probate be annulled and revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.
§5867. Probate conclusive, when.
If no person, within three (3) months after the admission to probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a period of one (1) year after their respective disabilities are removed.
§5881. Proceedings in case of lost will.
Whenever any will is lost or destroyed, the court must take proof of the execution and validity thereof and establish the same, notice to all heirs, legatees and devisees being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing, signed by the witnesses, filed and preserved.
R.L.1910, § 6226; Laws 1953, p. 234, § 8; Laws 1969, c. 302, § 3, eff. Jan. 1, 1970.
§5882. Special requisites of proof.
No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. For purposes of this section, a copy of the alleged lost or destroyed will can be admitted into evidence, whether or not the copy reflects the signature or signatures appearing on the original will, if the copy is properly identified, and the court shall determine what probative value, if any, is to be assigned to such copy.
R.L. 1910, § 6227; Laws 1993, c. 345, § 6, eff. Sept. 1, 1993.
§5883. Court's certificate Filing Letters testamentary.
When a lost or destroyed will is established, the provisions thereof must be distinctly stated and certified by the judge of the district court, under his hand and the seal of the court, and the certificate must be filed and recorded as wills are filed and recorded, and letters testamentary or of administration with the will annexed, must be issued thereon in the same manner as upon wills produced and duly proved; if the court has admitted into evidence a copy of the lost or destroyed will and finds that the copy distinctly states the provisions of the will, the court may certify the copy of the will as distinctly stating the provisions of the will; the testimony must be reduced to writing; signed, certified and filed as in other cases, and shall be admissible as evidence in any subsequent proceeding.
R.L. 1910, § 6228; Laws 1993, c. 345, § 7, eff. Sept. 1, 1993.
§5884. Restraint of former administration.
If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or executors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.
R.L.1910, § 6229.
§5891. Nuncupative wills, how proved.
Nuncupative wills may, at any time within six (6) months after the testamentary words are spoken by the decedent, be admitted to probate on petition and notice as provided for the probate of wills executed in writing. The petition, in addition to the jurisdictional facts, must allege that the testamentary words, or the substance thereof, were reduced to writing within thirty (30) days after they were spoken, which writing must accompany the petition.
R.L.1910, § 6230.
§5892. Nuncupative wills Special requirements.
The district court must not receive or entertain a petition for the probate of a nuncupative will until the lapse of fourteen (14) days from the death of the testator, nor must such petition be at any time acted on, unless the testamentary words are or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife, if any, and all other persons resident in the state or county, interested in the estate, are notified, as provided herein.
R.L.1910, § 6231.
§5893. Proceedings in contest.
Contests of the probate of nuncupative wills and appointments of executors and administrators of the estate devised thereby must be had, conducted and made as hereinbefore provided in cases of the probate of written wills: Provided, that double the period allowed for the petition of revocation of the probate of a written will shall be allowed in which to petition for the revocation and annulling of the nuncupative will.
R.L.1910, § 6232.
§58101. Letters to issue to executor or successor in interest of corporate executor.
The court admitting a will to probate after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, and in the case of a corporate executor, to the successor in interest of the corporate executor, who are competent to discharge the trust, who must appear and qualify unless objections be made as provided in Section 104 of this title. Provided, a successor in interest shall include a judicially ordered successor in the event of an assumption by a financial institution of fiduciary accounts for all trusts in existence on the date of the assumption, together with those testamentary trusts which come into existence after the date of assumption.
Amended by Laws 1988, c. 319, § 3, eff. Nov. 1, 1988.
§58102. Who incompetent as executor.
No person is competent to serve as executor who at the time the will is admitted to probate is
1. Under the age of majority.
2. Convicted of an infamous crime.
3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding and integrity.
R.L.1910, § 6234.
§58103. Failure of executors.
If the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued.
R.L.1910, § 6235.
§58104. Objections to issue of letters Letters of administration with will annexed.
Any person interested in a will may file objections in writing, to granting letters testamentary to the persons named as executors, or any of them; and the objections must be heard and determined by the court. A petition may at the same time, be filed for letters of administration, with will annexed.
R.L.1910, § 6236.
§58105. Death of an executor.
No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the estate of the first testator, left unadministered, must be issued.
R.L.1910, § 6237.
§58106. Executor disqualified by absence or minority.
Where a person absent from the state, or a minor, is named executor, and there is another executor who accepts the trust and qualifies, the latter may have letters testamentary and administer the estate until the return of the absentee, or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of administration with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor, or the arrival of the minor at the age of majority.
R.L.1910, § 6238.
§58107. Two or more personal representatives.
A. When all the executors named are not appointed by the court, those appointed have the same authority to perform all the acts and discharge the trust required by the will, as effectually for every purpose as if all were appointed and should act together.
B. When there are two personal representatives:
1. if one of such personal representatives is laboring under any legal disability from serving, the act of the other shall be effectual; or
2. if one of such personal representatives has given his copersonal representative authority, in writing, to act for both, the act of the copersonal representative having such authority in writing shall be effectual.
C. When there are more than two personal representatives, the act of a majority of them is valid.
Amended by Laws 1988, c. 329, § 129, eff. Nov. 1, 1988.
§58108. Presumed renunciation of executorship.
If the person named in a will as executor, for thirty (30) days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown.
R.L.1910, § 6240.
§58109. Administrators with will annexed Authority Letters.
Administrators with the will annexed have the same authority over the estates which executors named in the will would have, and their acts are effectual for all purposes. Their letters must be signed by the judge of the district court, and bear the seal thereof.
R.L.1910, § 6241.
§58110. Form of letters testamentary.
Letters testamentary must be substantially in the following form:
State of Oklahoma,
County of ______.
The last will of A B, deceased, having been proved and recorded in the county court of the county of ______, C D, who is named therein, is hereby appointed executor.
Witness G H, judge of the county court of the county of ______, with the seal of the court affixed the ______ day of ______ A. D., 19__.
R.L.1910, § 6242; Laws 1953, p. 234, § 10.
§58111. Letters of administration with will annexed, form of.
Letters of administration with will annexed must be substantially in the following form:
State of Oklahoma,
County of ______.
The last will of A B, deceased having been proved and recorded in the county court of the county of ______ and there being no executor named in the will (or, as the case may be,) C D is hereby appointed administrator, with the will annexed.
Witness G H, judge of the county court of the county of ______, with the seal of the court affixed, the ______ day of ______ A. D., 19__.
R.L.1910, § 6243; Laws 1953, p. 234, § 11.
§58121. Letters of administration.
Letters of administration must be signed by the judge, under the seal of the court, and substantially in the following form:
State of Oklahoma,
County of ______
C D is hereby appointed administrator of the estate of A B, deceased.
Witness G H, judge of the county court of the county of ______, with the seal thereof affixed, the ______ day of ______ A. D., 19__. (Seal and the official signature of the judge.)
R.L.1910, § 6244.
§58122. Persons entitled to letters of administration.
Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:
1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.
2. The children.
3. The father or mother.
4. The brothers or sisters.
5. The grandchildren.
6. The next of kin entitled to share in the distribution of the estate.
7. The creditors.
8. Any person legally competent.
If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.
R.L.1910, § 6245; Laws 1961, p. 440, § 1.
§58123. Preferences.
Of several persons claiming and equally entitled to administer, relatives of the whole blood must be preferred to those of the half blood.
R.L.1910, § 6246; Laws 1961, p. 440, § 2.
§58124. Where several equally entitled Creditors.
When there are several persons equally entitled to the administration, the court may grant letters to one or more of them; and when a creditor is claiming letters, the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent.
R.L.1910, § 6247.
§58125. Letters to guardian of minor entitled.
If any person entitled to administration is a minor, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court.
R.L.1910, § 6248.
§58126. Who incompetent as administrator.
No person is competent to serve as administrator or administratrix, who, when appointed, is:
1. Under the age of majority.
2. Convicted of an infamous crime.
3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity.
R.L.1910, § 6249.
§58127. Requisites of petition for administration.
Petition for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the judge of the court stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages and residence of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts existed, but are not fully set forth in the petition, and are afterwards proved in the course of administration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments.
R.L.1910, § 6250.
§58128. Notice of hearing.
A. When a petition praying for letters of administration is filed, the judge of the court must set a day for hearing the same and cause notice thereof to be given, containing the name of the decedent, the name of the applicant for letters, and the day on which the application will be heard.
B. If the names and addresses of all heirs of the decedent are known to the petitioner and are set out in the petition, the notice must be given, as provided in Section 34 of this title, by mailing a copy of the same to each of the heirs of the deceased with the postage thereon prepaid at least ten (10) days before the day set for the hearing.
C. If the name or address of one or more heirs of the decedent is not known to the petitioner, notice of the hearing of the petition shall be given by mailing, as above provided, and by publishing the same one time in a legal newspaper in the county at least ten (10) days before the day set for the hearing.
D. If the petition asks for the appointment of some person entitled under the law to appointment, and there shall accompany such petition a waiver of all persons having a prior right to appointment or if the applicant has a prior right of appointment, then no notice shall be given and the court shall proceed without delay to hear such petition.
R.L.1910, § 6251; Laws 1953, p. 234, § 12; Laws 1955, p. 299, § 1; Laws 1967, c. 179, § 1, emerg. eff. May 1, 1967; Laws 1969, c. 302, § 4, eff. Jan. 1, 1970; Laws 1970, c. 218, § 2, emerg. eff. April 15, 1970; Laws 1994, c. 184, § 1, eff. Sept. 1, 1994.
§58129. Contest of petition Notice.
Any person interested may contest the petition by filing written opposition thereto, on the ground of the incompetency of the applicant, or may, at any time within thirty (30) days after an administrator has been appointed, assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file his petition in the court. The court thereof shall set a day for hearing the same and the contestant shall give written notice by mail, postage prepaid, to the known heirs and the original petitioner or administrator, if the appointment has been made, of said contest, and the time and place set for hearing the same, at least five (5) days before said hearing.
R.L.1910, § 6252; Laws 1969, c. 302, § 5, eff. Jan. 1, 1970.
§58130. Hearing of the petition Order.
On the hearing, it being first proved that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto.
R.L.1910, § 6253.
§58131. Court entry as to proof conclusive.
An entry in the minutes of the court, that the required proof was made and notice given, shall be conclusive evidence of the fact of such notice.
R.L.1910, § 6254.
§58132. Letters granted to applicant where no contest.
Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration when such persons fail to appear and claim the issuing of letters to themselves.
R.L.1910, § 6255.
§58133. Proof of death intestate.
Before letters of administration are granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others; and the court may also examine any other person concerning the time, place and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left any will, and may compel any person to attend as a witness for that purpose.
R.L.1910, § 6256.
§58134. Nomination of stranger by person entitled.
Administration may be granted to one or more competent persons, although not entitled to the same, at the written request of the person entitled, filed in the court. When the person entitled is a nonresident of the state, affidavits or depositions taken ex parte before any officer authorized by the laws of this state to take acknowledgments and administer oaths out of this state, may be received as prima facie evidence of the identity of the party, if free from suspicion, and the fact is established to the satisfaction of the court.
R.L.1910, § 6257.
§58135. Revocation in favor of person entitled.
When letters of administration have been granted to any person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them may obtain the revocation of the letters and be entitled to the administration, by presenting to the county court a petition praying the revocation, and that letters of administration be issued to him.
R.L.1910, § 6258.
§58136. Notice of such petition.
When such petition is filed, the judge must in addition to the notice provided upon petition for letters, issue a citation to the administrator to appear and answer the same at the time appointed for the hearing.