If you die without a will, it is called dying “intestate.” For intestate decedents who own Individual Indian Money (IIM) accounts or interests in allotments, Congress has determined how their allotments and IIM accounts will be passed on to their heirs. This law is called the American Indian Probate Reform Act of 2004 (AIPRA.)
If you die intestate, AIPRA determines who receives your property, what amount they will receive, and whether your allotment interests will be subject to a forced sale at probate.
WITHOUT A WILL:
Without a will your allotment interests of 5% or more will go to:
- A life estate to your spouse who will receive the income from the allotment for life;
- After the spouse passes (or if there is no spouse) the interest will pass to all of your eligible children equally;
- If no children survive you, then to your eligible grandchildren who survive you;
- If none, to your parents, if they survive you;
- If none, then to your brothers and sisters who survive you;
- If none, then to the Tribe.
For allotment interests less than 5%, the rules are different:
- A life estate to your spouse ONLY if the spouse lives on the parcel;
- All other allotments of less than 5% go to your oldest living eligible child (this is called the “single heir rule”);
- If none, then to your oldest living eligible grandchild;
- If none, then to your oldest living eligible great grandchild;
- If none, then to the Tribe.
WHAT A WILL ALLOWS YOU DO:
A valid will allows you to, among other things:
- Choose the family members and friends you wish to receive your allotment interests and IIM account balance;
- Leave your allotment interests in trust status to any or all of your lineal descendants (your children, grandchildren or great grandchildren), whether or not they are Tribal members;
- Leave a life estate in an allotment to a non-Indian spouse, family member, or friend;
- Prevent any forced sale of your allotments by the Probate Court.
- Leave your interests in separate allotments to different family members.
- Leave your allotment interests to several family members “as joint tenants” so they can enjoy ownership during their lives, the last survivor taking the permanent ownership.
- Request a sale at probate of some or all of your allotment interests with the proceeds to be shared among your heirs as you choose.
(Adapted from information provided by the Institute for Indian Estate Planning and Probate at Seattle University School of Law.)
SOME THINGS TO REMEMBER WHEN WRITING A WILL:
Allotments and Tribal assignments are treated differently. An allotment is an interest in Indian Trust lands held by the government in trust for individual Beneficiaries. The allotment itself is usually not divided, but the ownership interest is divided among the various owners (Beneficiaries.) This results in most allotments having many owners. Allotments and IIM accounts are probated by the BIA, which gathers the necessary information for the probate and prepares a probate package, and the Office of Hearings and Appeals (OHA), which will hold a hearing at which an Administrative Law Judge will decide how the estate will be distributed according to law. The Judge will follow the provisions of a valid will in distributing the estate.
Assignments are grants by the Tribe of Tribal lands to individual Tribal members. The Tribal member who receives the assignment is asked to name a beneficiary. The named beneficiary is then given a preferential right to receive the assignment upon the death of the assignee; however, the Tribal Council must approve the actual assignment to the beneficiary.
You only need one will. It can be probated by OHA to distribute your allotment interest and IIM account balance, and by the Tribal Court to distribute all your non-Trust assets.
You do not need an attorney to help you prepare a will. However, the provisions of a will can be complicated, and the signing of the will must be done properly for it to be accepted by the Probate Court. The will must comply with the provisions of the Colorado Probate Code, AIPRA, and the rules of common law. Therefore, wills should only be prepared by someone who is knowledgeable about the law. After all, there is little anyone can do to “fix” a will after the testator’s death.
For attorneys, will preparation is the practice of law. Therefore, law students are required to prepare wills under the supervision of licensed attorneys.
A will does not need to be notarized to be effective, as long as it is witnessed according to state law. However, then the witnesses, if they are available, will be called to testify about the will-signing when the will is probated. Attaching a sworn (notarized) affidavit to the will, sworn to by the witnesses, stating that the will was properly executed, takes the place of the witnesses’ testimony at the probate hearing. The witnesses’ testimony is not required unless there is a court challenge to the execution of the will.
It is possible for a mentally incapacitated person to write a will. The threshold for Testators is much lower than the threshold for appointing a guardian, generally only requiring that Testators be reasonably aware of the contents of their estate, and that they are aware of the “objects of their bounty,” generally all their family members. Colorado has a specific statute to cover the proof of capacity of the testator in these situations, which allows a Court to determine the competency of a Testator at the time the will is signed.
There is no requirement that a will be filed anywhere, but it is good practice to file it with the Tribal Court so everyone knows where it is and it does not get misplaced when it is needed.