Indian Probate Law

Probate Law Purpose

• The term probate generally refers to how one's personal property is handed down to his heirs through either will or appointment. Property is categorized by federal law into two categories: trust and non-trust. Trust estates are compiled of land and individual money and are handled by the Department of the Interior's Office of Hearings and Appeals division. Non-trust estates encompass all other personal artifacts and are handled by state and tribal laws. Both probate categories depend on the notification of the Trust Beneficiary Call Center after the loss of a loved one in order to begin the probate process.
  
  

American Indian Probate Reform Act--AIPRA

• Fractionalization of Indian land benefits no one.isolated colorful fraction circles image by davidcrehner from Fotolia.com
  
  This reform is the epicenter of Indian Probate affairs setting a federal nationwide standard for American Indian trusts that bypasses state and local legislature. One major goal of the reform is to prevent "fractionalization," or the dividing of trusts into such small sections that the land becomes unusable. Under this legislation, smaller fragmented estates without willed beneficiaries are first given to a single heir before going up for grabs by individuals and surrounding tribes should no heir be found.
  
  

Indian Probate With a Valid Will

• The Indian probate process goes smoothly for those who possess a notarized last will and testament. Benefactors have the opportunity to choose into whose hands their personal property will fall, which may include heirs who do not belong to tribes recognized by the federal government. The only stipulation, as accorded by the AIPRA, lies in the distribution of trust estates to "non-Indians unless they are lineal descendants" which is prohibited. Non-Indian heirs must be within two generations of the benefactor to be eligible. Beneficiaries who have inherited an estate through a valid will have the option of either consolidating or selling their trust to the federal government, tribe or land co-owners provided their land interest is more than 5 percent.
  
  

Without a Valid Will

• The allocation of a benefactor's possessions without a valid will can become a webbed pandemonium for heirs. The first heir to be offered a trust estate when no will is involved is the spouse of the benefactor followed by a hierarchical order of children, grandchildren, parents and siblings. Land trusts that accumulate 5 percent of a larger frame of land are allocated to the benefactor's spouse, oldest child or grandchild in the form of a "life estate" if they currently reside on the property. Life estates are valid for the life duration of a beneficiary; once the heir passes on, the estate is reevaluated by the probate court. Estates without valid wills do not require consent for purchase unless spouse and heirs remain on the property.
  
  

Tribal Role in Probate Laws

• A 2008 amendment to the AIPRA has given tribes the option of creating their own probate laws. The conditions present in this option are few, but do include limits to fractionalization of land estates and a clause maintaining the original linear inheritance procedure as written in the AIPRA. Also included in the amendment are options for IRA tribes that bestow the power to "enact resolutions, codes or laws" that clarify what estates, if any, will have the option of being sold to non-Indians. For a tribal law to bypass the current reform code, it must first be approved by the Secretary of the Interior.