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Writing a Will

When Indian lands were allotted and the federal trust was established in the late 1800s, it’s not surprising that very few Indian people considered writing a will to protect their lands and assets when they passed on. The state probate laws determining trust land inheritance divided up land ownership amongst all of the original allottee’s heirs into undivided interests. With each passing generation, the undivided interests continued to be passed down to all heirs and the number of owners grew, and continues to grow exponentially, resulting in the highly fractionated ownership of much of Indian land today. Many state probate laws passed ownership to the surviving spouse, even if he or she was non-Indian. Because a non-Indian cannot hold trust land, this land lost its trust status, causing more land to go out of Indian control.

In 2004, the American Indian Probate Reform Act established a uniform federal probate code which applies to nearly all allotted reservations in the U.S. It includes provisions meant to decrease fractionation by setting limits on who can inherit Indian trust land and allowing for the sale of small interests at probate. Unfortunately, those provisions allow the federal government, rather than the landowner, to make decisions about the distribution of land and assets once the landowner is deceased. AIPRA automatically applies to all Indian probates of trust land in the U.S. unless there is a tribal probate code in place or the landowner has a valid will.

Key Provisions of AIPRA

  • Does not apply if there is a tribal probate code in place or the decedent has a will. Otherwise, applies to all trust land and assets.
  • Applies to those who died on or after June 20, 2006.
  • Allows only an “Indian” person to inherit or purchase trust land at probate. This includes: eligible heirs who meet AIPRA’s definition of “Indian,” a co-owner in the allotment, the tribe, and non Indian children of lineal descent within two generations of the decedent.
  • If the interests are five percent or greater:
    • Spouse, Indian or non-Indian, receives a life estate, but does not inherit the interests.
    • The interests pass equally first to eligible children, then grandchildren (if no children), then great-grandchildren (if no grandchildren, etc.), then surviving parents, then siblings, then the tribe, then co-owners, then to the secretary of the interior for sale.
  • If the interests are less than five percent:
    • Spouse, Indian or non-Indian, receives a life estate only if he or she is living on the parcel at the time of the decedent’s death.
    • The interests pass directly to the oldest eligible living child, grandchild or great-grandchild. This is known as the “single heir rule.”
    • If none of the above heirs exist, the interests pass to the tribe, then co-owners, then to the secretary of the interior for sale.
  • Purchases at probate of interests less than five percent can occur without the consent of a surviving spouse and heirs.
    • Amendments to the law state that only the tribe or secretary can purchase interests without consent.
    • Purchases at probate of interests greater than five percent require the consent of the surviving spouse and heirs.
  • With a will a landowner can:
    • Allow an Indian spouse to inherit trust land.
    • Transfer trust land to some individuals that are not considered eligible under AIPRA.
    • Choose to leave someone out of the will.
    • Actively protect trust land from further fractionation by leaving all of the interests in an allotment to one person.
    • Choose a life estate or joint tenancy with right of survivorship so that all family members can benefit from the land during their lifetimes.
    • Clarify wishes in regard to non-trust land and other personal property.
    • Make the probate process much easier for living family members.

Landowners should prepare their wills with the help of an attorney who is familiar with AIPRA and with the probate and transference of Indian trust lands and assets. There are legal service agencies throughout Indian Country who specialize in writing wills for Indian people (see Land Management Resources). Most of these organizations can provide will writing services at a very low cost or sometimes free.

The attorney that helps prepare the will can provide a more detailed checklist of information needed and things to consider when writing a will. Some of the information requested will likely include:

  • Names and addresses of family members or other individuals to whom the property will be left.
  • List of personal property to be left and to whom.
  • Individual Trust Interest Report.
  • Individual Indian Monies Statement of Account.
  • Deeds for fee land (if any).
  • Mortgage and title documents for home and other property (if any).

In order to write a valid will, an individual must be at least 18 years of age and fully competent to manage his or her own affairs. The will must be signed by the person who is writing it and two witnesses who are not receiving anything from the will. Sometimes people will have a notary sign as well. An affidavit signed by the witnesses will also accompany the will. This document is to ensure that the legitimacy of the witness signatures is not questioned at probate if they are not able to attend. The sooner a will is prepared the better. Once a will is in place, it can always be legally amended or a new will can be written. It’s a good idea to review a will after major events such as a birth, death or marriage that may affect the will.

Additional Resources:
American Indian Probate Reform Act, 2004
American Indian Probate Reform Act, 2007 (Technical Amendments)
Understanding the American Indian Probate Reform Act (DOI)
A Quick Guide to AIPRA (NCAI)
Understanding AIPRA for Landowners (Institute)
What Is the American Indian Probate Reform Act? (California Indian Legal Services)
Events Leading to AIPRA (John Sledd)
Passing Title to Tribal Land and Federal Probate of Native American Estates (Institute)
Indian Estate Planning (Legal Services of North Dakota)
Estate Planning Options (Institute)
Frequently Asked Questions Regarding Indian Wills (DOI)
Sample Personal Property Written List