Indian Wills – Planning for the Inevitable

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By Mike Godbe, CILS Bishop office Staff Attorney

It is often said, “nothing can be said to be certain, except death and taxes.” Because taxation in Indian Country is often uncertain (e.g., sales and use tax, property tax, etc.), this leaves death as the only certainty for Native Americans.

Death: the only certainty!

Well, now that I’ve got you feeling upbeat about how we’ll all be kicking the bucket someday, it’s a great time to remember that it’s never too early to start end-of-life planning!

For Native Americans who own an interest in an allotment or have money from their allotment in an Individual Indian Money (IIM) Accounts (referred to “trust assets”), there is a special set of probate rules for giving (“devising”) these assets by will.

Making a Valid Indian Will
While under state law a handwritten will with no witnesses, or a type-written will with two witnesses, may be valid, this state rule is not valid for leaving your trust assets to a relative or loved one. You must execute a will (“Indian Will”) that meets the requirements found in Title 25 of the Code of Federal Regulations, Subpart A (25 CFR §§15.1 – 15.12) to transfer trust assets.[1]  Some of these requirements are that, in addition to having 2 disinterested witnesses, the testator and witnesses must all sign Affidavits with specific language in the presence of “an officer authorized to administer oaths,” such as a notary, and contain specific language.

CILS Attorneys and Advocates have many years of experience assisting clients in drafting valid Indian Wills for their trust assets.

A Valid Indian Will can also Satisfy California Law  (Combined Will)
A valid Indian Will can meet the less-stringent requirements for a valid will under California law (i.e for transferring personal property and non-trust land).  (see Probate Code § 6110-6113). This means that you don’t need two wills– one for your trust and one for your non-trust assets—- as long as the more stringent requirements for Indian Wills are met.

Wills are also an appropriate place to record any specific wishes you may have following your passing. For example, whether you would like to be buried or cremated, where your ashes should be spread, whether you want a traditional burial ceremony, if your body should be left undisturbed for a certain period of time, and anything that requires the consent of your next of kin such as an autopsy. These can be hard conversations for families to have and CILS Attorneys and Advocates can help you navigate these challenging considerations.

What Happens to my Trust Assets if I Die Without Making a Valid Will?
If you die without a will, your trust assets will pass according to the rules set out in the American Indian Probate Reform Act of 2004 (AIPRA).[2] AIPRA creates specific rules for succession (transferring) of trust assets, which differ depending on whether the individual who died intestate (without a will) owns greater or less than 5% interest in the allotment being probated.

Before AIPRA was enacted, if there was no will, Indian trust assets would be distributed by following state law. As a result, throughout the country there was wide variation in how trust assets would be distributed among the heirs of deceased allottees. This of course is the legacy of the Allotment period (1877-1934) that resulted in severe fractionation of Indian trust lands. It is not unusual for Indian allotments to have hundreds of living interest holders sharing the land as tenants in common, with each only owning a fraction of one percent. A primary goal of AIPRA was to reduce – or at least lessen – this fractionation.

The AIPRA does not apply if a Tribe has its own Probate Code that has been approved by the Bureau of Indian Affairs.

CILS Is Here to Help
If you have more questions or are ready to move forward and make an Indian Will, don’t hesitate to contact your local CILS office.

For additional resources, check out the Trust Assets and Probate section of CILS’ Self-Help resources, where you can find AIPRA resources and helpful guides.

[1] This section of the Code of Federal Regulations does not apply to members of the Osage Nation and the “Five Civilized Tribes” of Oklahoma.

[2] If your tribe has its own probate code that has been approved by the Secretary of the Interior, then the tribe’s probate code, not AIPRA, applies.

Where there is a Will, there is a Way

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By Mark Vezzola, CILS Escondido office Directing Attorney

Pictured: Mark Vezzola CILS Escondido office Directing Attorney

With unemployment on the rise and our economic futures uncertain, making a will may not seem like a priority. But estate planning for Indian trust property is more important now than ever. The truth is that life is uncertain. Since we do not know what tomorrow holds, CILS strongly recommends people put their affairs in order today.

Why Should You Make an Indian Will?

Special rules apply to wills for Indian trust land. What we call “Indian trust lands” – those held in trust by the United States government for the benefit of tribes and individual Indians such as allotments – are governed by federal law. State probate courts, which usually administer a deceased person’s property according to a will or intestate succession laws (see below), have no jurisdiction over Indian trust land. Only the BIA or tribes (if they adopted a probate code) can probate such property.

If you die without a will a government will decide who gets your property. When a person dies without a valid will, his property transfers to his next of kin – spouse, children, grandchildren, etc. – under a plan called intestate succession. The American Indian Probate Reform Act of 2006 (AIPRA), a federal probate code for Indian lands, includes intestate provisions that dictate who inherits the land of deceased relatives. But what if you do not want your property going to your next of kin? Imagine a parent and child who had a falling out, or an elder worried about dividing a small amount of land among a large family? Failing to make a will places control in government hands.

Review your will periodically. Even people with Indian wills should review and update them accordingly as property changes hands, loved ones pass away, and families feud. Careful will drafting can avoid problems caused by these events, but a poorly written will or no will at all can result in unintended consequences, namely the Indian landowner’s property going to someone he or she does not wish to inherit it. The only way to ensure your wishes are honored is to create a valid will based on expert advice and update it as needed.

The BIA no longer offers will making services. People may remember the BIA once made form wills for Indian landowners and kept the signed originals on file at agency offices. The BIA ended the practice years ago and returned wills to their rightful owners. Today Indian landowners must contact CILS or another knowledgeable law office for help. We can help individuals protect their land and navigate the federal regulations on how to start the BIA probate process. Remember, until the BIA issues probate orders, the property stays in the name of the original owner.

Indian trust land cannot be put into a living trust. Finally, some Indian landowners seek out costly estate planning attorneys to place their Indian trust land into a living trust to avoid probate. Unfortunately, because Indian lands are already held in trust by the federal government, they cannot be put into another trust. While AIPRA does mention a “family trust,” congress never passed regulations explaining how to create one. Indian landowners are advised to contact CILS about making an Indian will before spending money on private estate planning attorneys who may not be familiar with federal Indian law.

How Can CILS Help You?

  • CILS offers no-cost will drafting services to income income-eligible clients. Individuals whose income exceeds the federal poverty guidelines pay low, competitive rates.
  • Our experience assisting clients, dealing with the BIA, and educating communities make CILS well prepared to advise clients and draft Indian wills.
  • In addition to Indian wills, CILS also assists clients with healthcare directives for medical decisions and powers of attorney to protect their wishes in the future.

For more information about AIPRA, click here: https://www.calindian.org/wp-content/uploads/2015/09/SelfHelpAIPRA.pdf

Will Writing After AIPRA: An Overview

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American Indian Probate Reform Act governs the passage of Trust or Restricted lands, procured under federal authority and through a Treaty based allocation system. Like Mark Vezzola points out, navigation through the legal system is problematic when “[f]inding a lawyer to explain one’s trust land interests and draft the Will can be a challenge.” (#justicematters) Personal property within a house or the house itself must be passed to children and grandchildren separately, since only the land succession is addressed in the AIPRA.

Mark Vezzola, Directing Attorney at the California Indian Legal Services, shares his substantial knowledge with readers at the mobile friendly web-based Educational Family Estate Apps as part of its Guest Writer Series (http://educationalfamilyestateapps.com/guest-writer-series/). His article is titled, “Will Writing After AIPRA – An Overview Of Estate Planning For Trust Assets.”

What is needed when a Testator owns both Trust and non-Trust property? Mark has seen clients with two Wills, one to cover each kind of property (your Trust assets versus everything else), and others whose last will and testament includes both kinds of assets . In a state context, avoidance of probate should be priority, since it is both costly and produces needless delay. Probates of Indian trust assets can be avoided through gift deeds, otherwise estates of Indian landowners are administered by the Office of Hearings and Appeals. As a parent or grandparent, when minor children are involved it is important to know how voluntary legal Guardianship can place your mind at greater ease about the care of your family members when you can’t.