[Federal Register: September 26, 2007 (Volume 72, Number 186)]
[Notices]
[Page 54674-54679]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se07-90]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Model Tribal Probate Code, Guidance for Submission of Tribal
Probate Codes Under 25 U.S.C. Section 2205
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: The Bureau of Indian Affairs (BIA) is announcing the
availability of a Model Tribal Probate Code with comments entitled
``Model Tribal Probate Code.'' BIA issues notices to inform tribes,
Indians, and other interested persons about important policies,
procedures, and related decisions, and these notices serve to provide
guidance to tribes and BIA personnel. This notice provides guidance to
tribes considering the creation and adoption of a Tribal Probate Code
containing provisions applicable to trust and restricted property and
includes a copy of the ``Model Probate Code with Comments.''
FOR FURTHER INFORMATION CONTACT: Eufrona Snyder, Office of Trust
Services, Bureau of Indian Affairs, Department of the Interior, 1849 C
Street, NW., Mailstop 4620-MIB, Washington, DC 20240; telephone number:
(202) 208-5831; fax number: (202) 208-2549.
SUPPLEMENTARY INFORMATION:
I. General Information
a. Does This Action Apply to Me?
This action is directed to federally recognized tribes and the
public in general. Since other persons may also be interested, the
Agency has not attempted to describe all the specific entities that may
be affected by this action. If you have any questions regarding the
information in this notice, consult the person listed under FOR FURTHER
INFORMATION CONTACT.
b. How Can I Get Copies of This Document and Other Related Information?
Please contact the person listed under FOR FURTHER INFORMATION
CONTACT who will arrange for a copy to be sent to you.
c. Is There a Comment Period for This Notice and to Whom Do I Send
Comments?
The comment period for the ``Model Tribal Probate Code with
Comments'' will open on the date of publication of this notice and last
for twenty (20) days. Comments can be directed to the person listed
under FOR FURTHER INFORMATION CONTACT.
II. What Guidance Does This Notice Provide?
The Model Tribal Probate Code is intended to serve as suggested
guidelines for Tribes considering the creation and adoption of a Tribal
Probate Code containing provisions applicable to trust and restricted
property. The Model Tribal Probate Code is not binding on tribes and is
not a rulemaking. The Model Tribal Probate Code sets forth the Bureau
of Indian Affairs (BIA) policy and interpretation of the American
Indian Probate Reform Act of 2004 (AIPRA) as it relates to the creation
and approval of Tribal Probate Codes. After the Department reviewed
several Tribal Probate Codes that contained provisions contrary to
AIPRA, the Department of the Interior (Department) decided to draft a
Model Tribal Probate Code. The Department may revise the Model Tribal
Code from time to time based on further experience.
The underlying purposes and policies of this code are: (1) To
clarify the provisions of the American Indian Probate Reform Act of
2004 (AIPRA) relating to the creation and adoption of Tribal Probate
Codes under 25 U.S.C. 2205; (2) to promote an efficient system for
Tribes to determine the descent and distribution of the decedent's
trust and non trust estates; (3) to facilitate use and enforcement of
Tribal Probate Codes.
The Model Tribal Probate Code is only intended to address trust and
restricted lands. The Department does not have jurisdiction over non
trust or non restricted assets. Those provisions are within the sole
authority of the Tribe, subject to its constitution. Tribes may have
provisions for non trust assets that greatly differ from those
provisions concerning trust assets. The Department recommends that
Tribal Probate Codes delineate which provisions apply to trust and non
trust assets.
III. Does This Notice Contain Binding Requirements?
No, the Model Tribal Probate Code is intended to serve as suggested
guidance for Tribes formulating Tribal Probate Codes that contain
provisions applicable to trust and restricted assets.
Dated: July 31, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
MODEL TRIBAL PROBATE CODE (With comments and suggested guidelines)
Table of Contents
ARTICLE I. GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION
PART 1. GENERAL PROVISIONS
Section
1-100 Evidence of Death or Status.
PART 2. DEFINITIONS
Section
1-200 General Definitions.
PART 3. SCOPE, JURISDICTION AND COURTS
Section
1-300 Subject Matter Jurisdiction.
1-301 Application of Tribal Probate Codes.
1-302 Appeals.
PART 4. REQUIREMENTS FOR TRIBAL PROBATE CODES
Section
1-400 Submission of Tribal Probate Code to the Secretary of the
Interior.
ARTICLE II. INTESTACY
PART 1. INTESTATE SUCCESSION
Section
2-100 Intestate Estate.
2-101 Share of Surviving Spouse.
2-102 Intestate Succession.
2-103 Intestate Descent of Small Fractional Interests in Land.
2-104 Right of Representation.
2-105 Requirement that Heir Survive Decedent for 120 Hours.
[[Page 54675]]
ARTICLE III. WILLS AND TESTAMENTARY DISPOSITION
PART 1. WILLS
Section
3-100 Who May Make a Will.
3-101 Requirements for Wills.
PART 2. TESTAMENTARY DISPOSITION
Section
3-200 General Devise of an Interest in Trust or Restricted Land.
3-201 Rules of Interpretation.
3-202 Devise of Trust or Restricted Land as a Life Estate or in
Fee.
3-203 Invalid Devisees and Wills.
3-204 Presumption of Joint-Tenancy.
ARTICLE IV. MISCELLANEOUS
PART 1
Section
4-100 Amendments to Tribal Probate Codes.
Model Tribal Probate Code
Comment--Model Tribal Probate Code
The Model Tribal Probate Code is intended to serve as suggested
guidelines for Tribes considering the creation and adoption of a Tribal
Probate Code containing provisions applicable to trust and restricted
property. The Model Tribal Probate Code is not binding on Tribes and is
not a rulemaking. The Model Tribal Probate Code sets forth the Bureau
of Indian Affairs (BIA) policy and interpretation of the American
Indian Probate Reform Act of 2004 (AIPRA) as it relates to the creation
and approval of Tribal Probate Codes. After the Department reviewed
several Tribal Probate Codes that contained provisions contrary to
AIPRA; the Department decided to draft a Model Tribal Probate Code. The
Department may revise the Model Tribal Code from time to time based on
further experience.
The underlying purposes and policies of this Code are: (1) To
simplify and clarify the provisions of the American Indian Probate
Reform Act of 2004 (AIRPA) relating to the creation and adoption of
Tribal Probate Codes under 25 U.S.C. 2205; (2) to promote an efficient
system for Tribes to determine the descent and distribution of the
decedent's trust and non trust estates; and (3) to facilitate use and
enforcement of Tribal Probate Codes.
This Model Tribal Probate Code is only intended to address trust
and restricted lands. The Department does not have jurisdiction over
non trust or non restricted assets. Those provisions are within the
sole authority of the Tribe, subject to its constitution. Tribes may
have provisions for non trust assets that greatly differ from those for
trust assets. The Department recommends delineating which provisions
apply to trust and non trust assets. Any tribe that elects not to adopt
the model code must ensure that its own code complies with AIPRA and
accompanying DOI regulations.
ARTICLE I. GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION
PART 1. GENERAL PROVISIONS
Section
1-100 Evidence of Death.
Section 1-100 Evidence of Death.
In addition to the rules of evidence in courts of general
jurisdiction, the following rules relating to a determination of death
apply:
(a) A certified copy of a death certificate is required to probate
the estate of a trust or restricted landowner.
(b) An individual whose death is not established under the
preceding paragraphs who is absent for a continuous period of not less
than six years, during which he has not been in contact with those who
knew him, is presumed to be dead.
COMMENT--SECTION 1-100
Paragraph (a) mandates that Tribes must require a certified death
certificate for probate of a trust or restricted estate. The
requirement in 25 CFR 15.101 may not be changed.
Paragraph (b) allows Tribes to establish an alternate time period
for a rebuttable presumption of death (other than the 6 years
established in the proposed 43 CFR 30.124). Note that the language
reads ``not less than.'' Tribes may increase the time period for the
rebuttable presumption of death, but may not shorten the proposed
regulatory time period.
PART 2. DEFINITIONS
Section
1-200 General Definitions.
COMMENT--PART 2
See 25 U.S.C. 2201. These suggested definitions relate to trust and
restricted property. A Tribe may have different definitions for their
non trust assets. For clarity, the BIA suggests delineating which
definitions and provisions apply to trust and non trust property in the
Tribal Probate Code.
Section 1-200 General Definitions.
For purposes of this Code--
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
Child includes any formally adopted child.
Consolidation agreement means a written agreement under the
provisions of 25 U.S.C. 2206(e) or 25 U.S.C. 2206(j)(9), by which a
decedent's heirs and devisees consolidate interests in trust or
restricted land, entered during the probate process, approved by the
judge, and implemented by the probate order.
Decedent means a person who is deceased.
Department or DOI means the Department of the Interior.
Devise means a gift of property by will. Also, to give a gift of
property by will.
Devisee means a person or entity that receives property under a
will.
Eligible heirs means, for purposes of Article 2 Part 1 (25 U.S.C.
2206), any of a decedent's children, grandchildren, great
grandchildren, full siblings, half siblings by blood, and parents who
are--
(a) Indian; or
(b) Lineal descendents within two degrees of consanguinity of an
Indian; or
(c) Owners of a trust or restricted interest in a parcel of land
for purposes of inheriting by descent, renunciation, or consolidation
agreement under Article 2 Part 1 of this code or 25 U.S.C. 2206,
another trust or restricted interest in such parcel from the decedent.
Estate means the land and personalty owned by the decedent at the
time of death.
Heir means any individual or entity eligible to receive land and
personalty from a decedent in an intestate proceeding.
Heirs of the first or second degree means parents, children,
grandchildren, grandparents, brothers and sisters of a decedent.
Indian means--
(a) Any person who is a member of a federally recognized Indian
tribe, is eligible to become a member of any Indian tribe, or is an
owner (as of October 27, 2004) of an interest in trust or restricted
land;
(b) Any person meeting the definition of Indian under 25 U.S.C.
479; and the regulations promulgated thereunder; and
(c) With respect to the inheritance and ownership of trust or
restricted land in the State of California under 25 U.S.C. 2206, any
person described in subparagraph (a) or (b) of this definition or any
person who owns a trust or restricted interest in a parcel of land in
that State.
Indian Tribe or Tribe means any Indian tribe, band, group, pueblo,
or community for which or for the members of which the United States
holds lands in trust.
Intestate means the decedent died without a valid will.
[[Page 54676]]
Land means any real property and includes within its meaning for
purposes of this Code improvements permanently affixed to real
property.
Minor means an individual who has not reached the age of majority
as defined by the applicable law. For all trust and restricted
property, the age of majority is 18 years of age. See 25 U.S.C. 373.
Probate means the legal process by which applicable tribal,
Federal, or State law that affects the distribution of a decedent's
estate is applied to:
(a) Determine the heirs;
(b) Determine the validity of wills and determine devisees;
(c) Determine whether claims against the estate will be paid from
trust funds; and
(d) Order the transfer of any trust or restricted land or trust
personalty to the heirs, devisees, or other persons or entities
entitled by law to receive the funds or land.
Purchase option at probate refers to the process by which eligible
purchasers can purchase a decedent's interest during the probate
proceeding.
Restricted property means real property, the title to which is held
by an Indian but which cannot be alienated or encumbered without the
consent of the Secretary. For the purposes of probate proceedings,
restricted property is treated as if it were trust property.
Secretary means the Secretary of the Interior or an authorized
representative. The authorized representative of the Secretary for the
performance of probate functions is BIA. The authorized representative
of the Secretary for adjudication of probate for trust and restricted
interests is OHA.
Testate means that the decedent executed a valid will.
Testator means a person who has executed a valid will.
Trust personalty means all funds and securities of any kind that
are held in trust in an individual Indian money account (IIM account)
or otherwise owned in trust by the United States for the benefit of an
individual Indian.
Trust property means real or personal property, or an interest
therein, for which the United States holds the title to the property in
trust for the benefit of an individual Indian or tribe.
Will means a written document executed with the required
formalities and intended to facilitate the passage of the testator's
property upon death.
Without regard to waste means, with respect to a life estate
interest in land, that the holder of such estate is entitled to the
receipt of all income, including bonuses and royalties, from such land
to the exclusion of the remainderman.
COMMENT--SECTION 1-200
See 25 U.S.C. 2201. Tribes may change certain definitions to suit
their specific needs. Tribes may alter or add definitions for
``spouse'' or ``child'' to incorporate tribal customs or laws. The
definitions for ``child'' and ``spouse'' must be consistent with the
definitions of those terms in the Tribe's family law codes if
applicable. All definitions must be consistent with Federal law.
Certain definitions may not be changed; these definitions include but
are not limited to: ``Indian'', ``consolidation agreements'', ``land'',
``purchase option at probate,'' and ``without regard to waste.''
Tribes do not have to use all of the definitions listed in the
Model Tribal Probate Code. Additional definitions are acceptable.
PART 3. SCOPE, JURISDICTION AND COURTS
Section
1-300 Subject Matter Jurisdiction.
1-301 Application of Tribal Probate Codes.
1-302 Appeals.
COMMENT--PART 3
See 25 U.S.C. 2205. Territorial Application.
Notwithstanding any other provision of law, any Indian tribe may
adopt a Tribal Probate Code to govern descent and distribution of trust
or restricted lands that are--
(a) Located within that Indian tribe's reservation; or
(b) Otherwise subject to the jurisdiction of that Indian tribe.
Section 1-300 Subject Matter Jurisdiction.
(a) The Department of the Interior.
(1) The Department of the Interior has exclusive jurisdiction over
the adjudication of probate estates for owners of trust or restricted
property. This function may not be delegated through a compact or
contract.
(2) The Department of the Interior has exclusive jurisdiction in
the preparation of probate packages. This function may be performed by
a Tribe through a compact or contract.
(b) Tribal Courts. To the extent permitted by its Tribal
constitution, and other applicable Federal and State laws, the Tribal
Probate Court has jurisdiction over all non-trust subject matter
relating to:
(1) Estates of decedents, including construction of wills,
determination of heirs, successors of decedents, and estates of
protected persons;
(2) Protection of minors and incapacitated persons; and
(3) Trusts that are not under the exclusive jurisdiction of the
Department of Interior.
COMMENT--SECTION 1-300
See 25 U.S.C. 2205. The Constitution of a Tribe does not supersede
AIPRA or other Federal law. The Department is not required to follow
Tribal law timelines for review of codes. A Tribe may not determine a
different enactment date for their tribal probate code with regard to
trust and restricted property.
Section 1-301 Application of Tribal Probate Code.
When probating an estate, the Department will apply an approved
Tribal Probate Code for all trust and restricted estates, subject to
the jurisdiction of that Tribal Probate Code.
COMMENT--SECTION 1-301
See 25 U.S.C. 2205. AIPRA will be applied by the Department of
Interior to determine the distribution of trust personalty in all trust
and restricted estates.
In instances where the approved Tribal Probate Code is silent on an
issue in a particular estate, the Department will apply AIPRA or other
controlling applicable law.
Section 1-302 Appeals.
Application for appellate review, including the right to appellate
review, will be governed by 43 CFR Part 4 Subpart D for all trust or
restricted property estates.
COMMENT--SECTION 1-302
See 43 CFR Part 4. Tribes may not change the timelines for
applications of de novo review, reopening, or rehearing.
PART 4. REQUIREMENTS FOR TRIBAL PROBATE CODES
Section
1-400 Submission of Tribal Probate Code to the Secretary of
Interior.
1-400 Submission of Tribal Probate Code to the Secretary of Interior.
Tribal Probate Codes and Tribal Probate Code amendments containing
provisions on trust and restricted lands must be submitted to the
Secretary of the Interior for approval.
COMMENT--SECTION 1-400
See 25 U.S.C. 2205. If the Secretary disapproves a Tribal Probate
Code, or an amendment to the a code, the Secretary shall include a
written explanation of the reasons for the disapproval in the notice of
disapproval to the Indian Tribe.
[[Page 54677]]
Consistency with Federal Law and Policies
(a) The Tribal Probate Code must be consistent with Federal law and
promote the policies set forth in section 102 of the Indian Land
Consolidation Act Amendments of 2000. Those policies are to:
(1) Prevent further fractionation of trust allotments;
(2) Consolidate fractional interests and ownership of those
interests into usable parcels;
(3) Consolidate fractional interests in a manner that enhances
tribal sovereignty;
(4) Promote Tribal self sufficiency and self determination;
(5) Reverse the effects of the allotment policy on Indian tribes.
Tribal Probate Codes must be consistent with Federal law. Federal
law includes the Department's regulations. The proposed regulations for
Indian trust and restricted estates can be found at 25 CFR Part 15, 25
CFR Part 18, 25 CFR Part 179, 43 CFR Part 30, and 43 CFR Part 4.
Current probate regulations may be found at 25 CFR Part 15 and 43 CFR
Part 4.
ARTICLE II. INTESTACY
PART 1. INTESTATE SUCCESSION
Section
2-100 Intestate Estate.
2-101 Share of Surviving Spouse.
2-102 Intestate Succession.
2-103 Intestate Descent of Small Fractional Interests in Land.
2-104 Right of Representation.
2-105 Requirement that Heir Survive Decedent for 120 Hours.
Section 2-100 Intestate Estate.
Rules of descent. Any trust or restricted interest in land that is
not disposed of by a valid will shall descend according to
(a) Sections 2-101 through 2-103; and
(b) Other applicable Federal law.
COMMENT--SECTION 2-100
See 25 U.S.C. 2206.
Section 2-101 Share of Surviving Spouse.
(a) If there is a surviving spouse of the decedent, the spouse
shall receive a life estate, without regard to waste, in the trust or
restricted lands of the decedent.
(b) If there is a surviving spouse of the decedent, the spouse
shall receive the appropriate trust personalty as outlined in AIPRA. 25
U.S.C. 2206(a)(2).
(c) The remainder of the estate shall pass as set forth in Section
2-102 and 2-103.
COMMENT--SECTION 2-101
See 25 U.S.C. 2206.
Section 2-102 Intestate Succession.
Where there is no surviving spouse of the decedent, or there is a
remainder interest pursuant to section 2-101, the trust or restricted
estate or such remainder shall, subject to sections 2-100 and section
2-103, pass as follows:
(a) To those of the decedent's children who are eligible heirs in
equal shares (or if one or more of such children do not survive the
decedent, the children of any such deceased child who are eligible
heirs, by right of representation, but only if such children of the
deceased child survive the decedent).
(b) If the property does not pass under paragraph (a) of this
section, to those of the decedent's surviving great-grandchildren who
are eligible heirs, in equal shares.
(c) If the property does not pass under paragraph (a) or (b) of
this section, to the decedent's surviving parent who is an eligible
heir, and if both parents survive the decedent and are both eligible
heirs, to both parents in equal shares.
(d) If the property does not pass under paragraph (a), (b), or (c)
of this section, to those of the decedent's surviving siblings who are
eligible heirs, in equal shares.
(e) If the property does not pass under paragraph (a), (b), (c), or
(d) of this section, to the Indian tribe. Except that notwithstanding
paragraph (e), an Indian co-owner (including the Indian tribe referred
to in paragraph (e)) of a parcel of trust or restricted land may
acquire an interest that would otherwise descend under that paragraph
by paying into the estate of the decedent, before the close of the
probate of the estate, the fair market value of the interest in the
land; if more than one Indian co-owner offers to pay for such interest,
the highest bidder shall acquire the interest.
COMMENT--SECTION 2-102
See 25 U.S.C. 2206. Tribal Probate Codes may include rules of
intestate succession and other tribal probate provisions that are
consistent with Federal law and promote the policies of the 2000 ILCA
amendments. 25 CFR 2205(a)(2)(A)(B). Tribes may not change the
provisions of AIPRA regarding consolidation agreements, purchase option
at probate, or determination of valuation methods.
Further, in intestate cases, the life estate of a surviving spouse
must be ``without regard to waste.''
Section 2-103 Intestate Descent of Small Fractional Interests in Land.
Notwithstanding the sections relating to intestacy and testamentary
disposition, and subject to any applicable Federal law, any trust or
restricted interest in land in the decedent's estate that is not
disposed of by a valid will; and represents less than 5 percent of the
entire undivided ownership of the parcel of land of which such interest
is a part, as evidenced by the decedent's estate inventory at the time
of the heirship determination, shall descend in accordance with
paragraphs (a) and (b).
(a) Surviving spouse. If there is a surviving spouse, and such
spouse was residing on a parcel of trust or restricted land
representing less than 5 percent of the entire undivided ownership of
the parcel of land of which such interest is a part at the time of the
decedent's death, the spouse shall receive a life estate without regard
to waste in the decedent's trust or restricted interest in only such
parcel, and the remainder interest in that parcel shall pass in
accordance with the single heir rule.
(b) Single heir rule. Where there is no life estate created for a
surviving spouse or there is a remainder interest under that paragraph,
the trust or restricted interest or remainder interest that is subject
to this Part shall descend, in trust or restricted status, to--
(1) The decedent's surviving child, but only if such child is an
eligible heir; and if two or more surviving children are eligible
heirs, then to the oldest of such children;
(2) If the interest does not pass under subparagraph (1) of this
section, the decedent's surviving grandchild, but only if such
grandchild is an eligible heir; and if two or more surviving
grandchildren are eligible heirs, then to the oldest of such
grandchildren;
(3) If the interest does not pass under subparagraph (1) or (2) of
this section, the decedent's surviving great grandchild, but only if
such great grandchild is an eligible heir; and if two or more surviving
great grandchildren are eligible heirs, then to the oldest of such
great grandchildren;
(4) If the interest does not pass under subparagraph (1), (2), or
(3) of this section, then to the Indian tribe.
COMMENT--SECTION 2-103
See 25 U.S.C. 2206. A Tribe may adopt a rule of intestate descent
applicable to the single heir rule that differs from the order of
descent set forth in AIPRA. The Secretary shall apply such rule to the
intestate interest in distributing the decedent's estate but only if--
(a) A copy of the tribal rule is delivered to the official
designated by the Secretary to receive copies of tribal rules for the
purposes of this paragraph;
[[Page 54678]]
(b) The tribal rule provides for the intestate inheritance of such
interest by no more than 1 heir, so that the interest does not further
fractionate;
(c) The tribal rule does not apply to any interest disposed of by a
valid will;
(d) The decedent died on or after the effective date of the Tribal
Probate Code; and
(e) The Secretary does not make a determination within 90 days
after a copy of the tribal rule is delivered pursuant to item (a) that
the rule would be unreasonably difficult to administer or does not
conform with the requirements in item (b) or (c).
Section 2-104 Right of Representation.
If, under this Article, all or any part of the estate of a decedent
is to pass to children of a deceased child by right of representation,
that part is to be divided into as many equal shares as there are
living children of the decedent and pre-deceased children who left
issue who survive the decedent. Each living child of the decedent, if
any, shall receive one share, and the share of each pre-deceased child
shall be divided equally among the pre-deceased child's children.
COMMENT--SECTION 2-104
See 25 U.S.C. 2206. AIPRA sets forth a detailed and specific scheme
for the right of representation and therefore may not be modified in a
Tribal Probate Code. Right of representation does not refer to the
single heir rule.
Section 2-105 Requirement That Heir Survive Decedent for 120 Hours.
In the case of intestate succession under this Article, if an
individual fails to survive the decedent by at least 120 hours, as
established by clear and convincing evidence--
(a) The individual shall be deemed to have predeceased the decedent
for the purpose of intestate succession; and
(b) The heirs of the decedent shall be determined in accordance
with this Article.
COMMENT--SECTION 2-105
See 25 U.S.C. 2206. AIPRA sets forth a detailed and specific scheme
for the requirement that an heir survive the decedent for 120 hours and
therefore may not be modified in a Tribal Probate Code.
ARTICLE III. WILLS AND TESTAMENTARY DISPOSITION
PART 1. WILLS
Section
3-100 Who May Make a Will.
3-101 Requirements for Wills.
Section 3-100 Who May Make a Will.
Any person 18 years of age or over and of testamentary capacity,
who has any right, title, or interest in trust or restricted land or
trust personalty, may dispose of trust or restricted land or trust
personalty by will.
COMMENT--SECTION 3-100
See 25 U.S.C. 2206. A Tribe may elect a different age of majority
for non trust land and personalty.
A Tribe may also want to include emancipated minors in this section
for non-trust or restricted property.
Section 3-101 Requirements for Wills.
A will must be executed and dated in writing and attested by two
disinterested adult witnesses.
COMMENT
See 25 CFR Part 15. The Department requires this criteria for wills
devising trust or restricted property.
PART 2. TESTAMENTARY DISPOSITION
Section
3-200 General Devise of an Interest in Trust or Restricted Land.
3-201 Rules of Interpretation.
3-202 Devise of Trust or Restricted Land as a Life Estate or
Fee.
3-203 Invalid Devisees and Wills.
3-204 Presumption of Joint Tenancy.
Section 3-200 General Devise of an Interest in Trust or Restricted
Land.
Subject to any applicable Federal law relating to the devise or
descent of trust or restricted land, the owner of a trust or restricted
interest in land may devise such interest to--
(a) Any lineal descendant of the testator;
(b) Any person who owns a pre-existing undivided trust or
restricted interest in the same parcel of land;
(c) The Tribe with jurisdiction over the interest in land; or
(d) Any Indian;
in trust or restricted status.
COMMENT--SECTION 3-200
See 25 U.S.C. 2206.
Section 3-201 Rules of Interpretation.
Any devise of a trust or restricted interest in land pursuant to
section 3-200 to an Indian or the Tribe shall be deemed to be a devise
of the interest in trust or restricted status. Any devise of a trust or
restricted interest in land to a person who is only eligible to be a
devisee under paragraph (a) or (b) of section 3-200 shall be presumed
to be a devise of the interest in trust or restricted status unless
language in such devise clearly evidences an intent on the part of the
testator that the interest is to pass as a life estate or fee interest
in accordance with section 3-202.
COMMENT--SECTION 3-201
See 25 U.S.C. 2206.
Section 3-202 Devise of Trust or Restricted Land as a Life Estate or in
Fee.
Except as provided for under any applicable Federal law, any trust
or restricted interest in land that is not devised in accordance with
section 3-200 may be devised only--
(a) As a life estate to any person, with the remainder being
devised only in accordance with section 3-200 or 3-201; or
(b) Except as provided in subparagraph 3-201, as a fee interest
without Federal restrictions against alienation to any person who is
not eligible to be a devisee under paragraph (d) of section 3-200.
COMMENT--SECTION 3-202
See 25 U.S.C. 2206.
Section 3-203 Invalid Devises and Wills.
(a) Land. Any trust or restricted interest in land that is not
devised in accordance with the above sections or that is not disposed
of by a valid will shall descend in accordance with the applicable law
of intestate succession as provided for in ARTICLE II Section 2-102 and
2-103.
(b) Personalty. Any trust personalty that is not disposed of by a
valid will shall descend in accordance with the applicable law of
intestate succession as provided for in AIPRA.
COMMENT--SECTION 3-203
See 25 U.S.C. 2206. Prohibited Devise; Exceptions
(a) The Tribal Probate Code must allow the devise of an interest
to:
(1) An Indian lineal descendant of the original allottee; and
(2) An Indian who is not a member of the Indian tribe with
jurisdiction over the interest in the land;
(b) The Code may restrict the ability of the devisees listed in (a)
to inherit so long as the code allows:
(1) Those devises to renounce their interests to the eligible
devisees as defined by the tribal code;
(2) A devisee who is the spouse or lineal descendant of the
testator to reserve a life estate without regard to waste; and
(3) For the payment of fair market value as determined by the
Department on the date of the decedent's death.
[[Page 54679]]
Section 3-204 Joint Tenancy; Right of Survivorship.
(a) Presumption of joint tenancy. If a testator devises trust or
restricted interests in the same parcel of land to more than one
person, in the absence of clear and express language in the devise
stating that the interest is to pass to the devisees as tenants in
common, the devise shall be presumed to create a joint tenancy with the
right of survivorship in the interests involved.
(b) Exception. Paragraph (a) shall not apply to any devise of an
interest in trust or restricted land where the will in which such
devise is made was executed prior to June 20, 2006 (the date that is 1
year after the date on which the Secretary publishes the certification
required by section 8(a)(4) of the American Indian Probate Reform Act
of 2004). (25 USCS 2201 note).
COMMENT--SECTION 3-204
See 25 U.S.C. 2206. A Tribe may not alter the presumption of joint
tenancy.
ARTICLE IV. MISCELLANEOUS
PART I
Section
4-100 Amendments to the Tribal Probate Code.
Section 4-100 Amendments to the Tribal Probate Code.
Amendments to the Tribal Probate Code are permitted if they are
consistent with AIPRA and the Department of the Interior's regulations.
Amendments to a Tribal Probate Code must be approved by the Department.
COMMENT--SECTION 4-100
See 25 U.S.C. 2205.
[FR Doc. E7-19103 Filed 9-25-07; 8:45 am]
BILLING CODE 4310-W7-P
