Where there is a Will, there is a Way

By 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