American Indian Probate Reform Act of 2004 (AIPRA)

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American Indian Probate Reform Act of 2004(AIPRA)

PolsonJune 7, 2012

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Marsha A. Goetting• Montana State University Extension Family Economics Specialist• Department of Agricultural

Economics & Economics

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Special Request from Nori & Planning Committee

•Don’t be boring•Don’t put people to sleep zzzzzzzz

•Don’t be a dud!!!!

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Marsha’s Version of

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Using Response Clicker

•Is already ON•Don’t press these buttons–Menu–Enter–Go to–Clear

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Test Your ClickerPress 3/C

• 1/A• 2/B• 3/C • 4/D

Not Accepting Answers

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Screen shows your answer

• 1/A• 2/B• 3/C • 4/D

Your Answer1/A

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Practice: At this point in time are you?

1. Married2. Single3. Divorced4. Separated5. Widowed

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Must respond before end of time

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Practice: Number of Years Lived in Montana

0 - 9 10 - 19 20 - 29 30 - 39 40 - 49 50 &over

0% 0% 0%0%0%0%

1. 0 - 92. 10 - 193. 20 - 294. 30 - 395. 40 - 496. 50 & over

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What if I entered wrong answer? Last response counts

• 1/A• 2/B• 3/C • 4/D

Your Answer

4D

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Practice: Number of Years Lived in Montana

0 - 9 10 - 19 20 - 29 30 - 39 40 - 49 50 &over

0% 0% 0%0%0%0%

1. 0 - 92. 10 - 193. 20 - 294. 30 - 395. 40 - 496. 50 & over

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Yes No Questions

• Do not use these keys:

•“Yes” or• “No”

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Yes or No Questions

• Use •1, if yes•2, if no

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Do you own land off the reservation?

Yes No

50%50%

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1. Yes2. No

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Purpose of AIPRA•To Prevent Further Fractionation of Trust Lands

•To Encourage Consolidation of Indian Land Ownership

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Fractionation:

Each owner has an undivided interest in the entire parcel

Increasing number of owners with each passing generation

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Fractionation

6 generation family

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1st Generation

Original Allottee

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1/3

2nd Generation

Original Allottee

1/31/3

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1/91/91/9

3rd GenerationOriginal Allottee

1/3 1/31/3

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4th GenerationOriginal Allottee

1/3 1/3 1/3

1/9 1/9 1/9

1/36 1/36 1/36 1/36

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1/3 1/3 1/3

1/9 1/9 1/9

1/36 1/36 1/36 1/36

1/144 1/144 1/144 1/144

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1/3 1/3 1/3

1/9 1/9 1/9

1/36 1/36 1/36 1/36

1/144 1/144 1/144 1/144

???

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6th Generation with 3 Children

1 1 1144 3 432

=x

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1/3 1/3 1/3

1/9 1/9 1/9

1/36 1/36 1/36 1/36

1/144 1/144 1/144 1/144

1/4321/432 1/432

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Fractionation by $$$$• Example

Lease Dollar Amounts

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1st Generation

• $1,002 Annual Income

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$1,002Annual Income

$334$334 $334

2nd Generation

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$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

3th Generation

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$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

$27.83 $27.83 $27.83 $27.83

4th Generation

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$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

$27.83 $27.83

$6.96 $6.96 $6.96 $6.96

$27.83 $27.83

5th Generation

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$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

$27.83 $27.83

$6.96 $6.96 $6.96 $6.96

$27.83 $27.83

$2.32$2.32$2.32

6th Generation

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AIPRA controls Trust Property

• Trust LandsThroughout the United States (except Alaska)

• IIM Accounts(Individual Indian Money Accounts)

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AIPRA: Probate Sections

•Effective for persons who pass away on or after June 20, 2006

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Fact Sheet #3How is Reservation Land Owned by Individuals?

• Trust Status?• Fee Status?

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What is the status of your real property on the reservation?

1.Trust2.Fee simple3.Own both

types4.Don’t know

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Fee Status

•Land passes according to law of state where land is located

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Montana•For fee land & financial accounts:– Montana Intestacy Statutes apply if you pass away without a will

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Personal Property

• AIPRA does not affect: Checking Accounts Saving Accounts Vehicles

Montana law Controls these

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Fact Sheet #5

•Who can Inherit Your Trust Land & Retain Trust Status?

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AIPRA Requirement

•Interests must pass to: Eligible heirs to retain trust status

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Eligible heirs(Defined under AIPRA)

• Children• Grandchildren• Great

grandchildren• Brothers & sisters• Half brothers & sisters by

blood• Parents

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AIPRA distribution among eligible heirs:

• Depends on percentage of undivided interest owned by the person who passed away

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Do you own:Undivided Interests of5% or more?Less than 5%?

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Fact Sheet #4

•Your Individual Trust Interest (ITI) Report: How to read it

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Where do I get my ITI Report?

•BIA OfficeRealty DepartmentFlathead503-231-6702

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Where do I get my ITI Report?

•Northwest Regional OfficeBIA911 Northeast 11th AvenuePortland, Oregon

503-231-6702

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Important fact on ITI

Report: • Amount of undivided interest owned in each parcel

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ITI Report AGGREGATE DECIMAL

• Right hand side Aggregate decimal

• Decimal to 10 places– .0173611111

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Because AIPRA uses percent•Convert decimal to % by moving 2 places to the right.0173611111

= 1.7%

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Example: ITI Report

• .0173661111 = 1.7% Ft Peck• .156250000 = 15.6% Flathead• .0078125000 = 0.8% Blackfeet• .114583333 = 11.5% Ft Peck• .0078125000 = 0.8% Flathead• .0260416667 = 2.6% Ft Hall

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Use ITI Report to determine % of ownership

•5% interest or more?•Less than 5% interest?

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Fact Sheet #7

If your undivided interest in each allotment is:

less than 5%What Happens If You Pass Away Without Writing a Will?

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Single Heir Rule

•Undivided interest of less than 5%passes to one person in following order…..

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Single Heir Rule

• First priority: Oldest surviving eligible child

(less than 5% & no (less than 5% & no will)will)

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• If no surviving eligible child Oldest surviving eligible grandchild

Single Heir Rule(less than 5% & no (less than 5% & no will)will)

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Single Heir Rule

•If no surviving eligible grandchildOldest surviving eligible great- grandchild


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Single Heir Rule

•If no surviving eligible child, grandchild or great grandchild

Tribe


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Single Heir Rule

•If tribe does not have jurisdiction

Equal shares to Co-owners


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Summary Priority1. Oldest Surviving Eligible

Child2. Oldest Surviving

Grandchild3. Oldest Surviving great

Grandchild4. Tribe with jurisdiction5. Co-Owner


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Example: Single person

•Single defined?•Never married•Widowed•Divorced

(less than 5% & no will)(less than 5% & no will)

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Example 1: Sara• Sara has no written will

No living parentsNo SpouseNo ChildrenNo GrandchildrenNo Great Grandchildren

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ITI Report

.0173661111 = 1.7% Ft Peck.0156250000 = 1.6% Flathead.0078125000 = 0.8% Blackfeet.0114583333 = 1.1% Ft Peck.0078125000 = 0.8% Flathead.0260416667 = 2.6% Ft Hall

(Each is less than 5%)

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Who receives the interests in the land because Sara has no written will?

1. State of MT2. Tribe with

jurisdiction3. State where

land located4. Federal

government

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Single Heir Rule(no will)(no will)

•Undivided interest of less than 5% passes to:

Tribe with jurisdiction

on each reservation

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Tribe on each reservation inherits .0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall

Because each is less than 5%

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Example 2: Single, no spouse

•Has living Children

(less than 5% & no will)

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Children defined

(AIPRA)•Biological•Legally adopted

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Child Age 19

ChildAge 29

DAD

Example 2: Dad passes away with 2 kids


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Dad’s ITI Report

.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall (Each is less than 5%)

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Who receives the interests when Dad has no written will?1. State of

Montana2. Tribe where

land located3. Oldest Child4. Federal

government

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Single Heir Rule

•All interests pass to oldest surviving eligible child

(Because less than 5% & no will)

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Child Age 19

ChildAge 29

DAD

Child age 29 receives


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Passes to Oldest Child – Age 29

.017366111 = 1.7% Ft Peck

.015625000 = 1.6% Flathead

.007812500 = 0.8% Blackfeet

.011458333 = 1.1% Ft Peck

.007812500 = 0.8% Flathead

.026041666 = 2.6% Ft Hall

(Receives interests on each reservation with less than 5%)

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Married--AIPRA

• Also includes•Separated•Legal separation•Common law not recognized under AIPRA

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Example 3: Married

•Husband passes away

•Survivor (Wife)Who is not living on any of the parcels

No Children


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Husband’s ITI Report

.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall

(Each is less than 5%)

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Who receives the interest no written will?

1. Federal government

2. Tribe3. Spouse4. State where

land located

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Single Heir Rule

•There is no surviving eligible: child, or grandchild, or great-grandchild


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Example 3: Wife not living on parcel

• All interests pass to Tribe where land located

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Example 3: Wife not living on parcel

•Spouse receives none of the interests.

Why???? Husband owned less than 5%

interests

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Passes to Tribe where interest is located


(Each interest is less than 5%)

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Example 4:

•Survivors: Husband

Not living on the parcel

3 Children


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Husband

ChildAge 18

ChildAge 22

ChildAge 24

Wife

Example 4: Survivors: Husband & Children


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Mom’s ITI Report

.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead

.0260416667 = 2.6% Ft Hall

(Each interest is less than 5%)

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Who receives the interest no written will?

1.State of MT2.Tribe3.Oldest

Surviving Child

4.Oldest Grandchild

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Single Heir Rule

•Interests of less than 5% pass to oldest surviving eligible child

(no will)

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Husband

0

ChildAge 18

0

ChildAge 22

0

ChildAge 24

All

Wife

Survivors: Husband & Children (less than 5% & no will)

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24 year old receives all


(Because each interest is less than 5%)

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Example 5:

•Survivors Wife

•living on one of the parcels

3 Children


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Spouse lives on parcel .017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Standing .026041666 = 2.6% Ft Peck


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Wife Lives on Flathead

parcel

ChildAge 18

ChildAge 22

ChildAge 24

Husband

Children & Spouse

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Who receives the interest no will?

1.State of MT

2.Tribe3.Wife 4.Oldest

Child


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Exception: Single Heir Rule

•If spouse living on parcel: He/she receives life estate on that parcel, including the family home


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Life Estate

•Allows life tenant to have possession of property during his/her lifetime–But not ownership of property

(less than 5% & no will)(less than 5% & no will)

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Single Heir Rule: No will

•After death of Mom oldest child (remainderman) receives:Remainder interest

home land

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Remainderman

•Person entitled to property after the life tenant has passed away

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Oldest ChildSpouse – life estate .017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Flathead.026041666 = 2.6% Ft Hall


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Wife Life Estate

Husband

Trust Land(less than 5%& no will)(less than 5%& no will)

ChildAge 18

0

ChildAge 22

0

ChildAge 24parcels with less than 5%

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WifeHusband

Spouse passes away(less than 5% & no will)(less than 5% & no will)

Child0

OldestChildAge 24

Child0

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Oldest Child Receives remainder interest.017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Flathead.026041666 = 2.6% Ft Hall


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Upon Mother’s passing oldest child receives:

• Remainder interest–1.7% parcel Flathead

•Includes family home


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Summary: Less than 5% (no will)

•Single Heir Rule: Less than 5% interests pass to oldest child

Exception spouse living on parcel receives life estate

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More information:

•Fact Sheet #7Your Undivided Interest of less than 5%:

What Happens If You Pass Away Without a Written Will ?

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Fact Sheet #6

•Your Undivided Interest:

5% or more•What Happens If You Pass Away Without a Written Will?

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To find out how much interest you own:

• Check your Individual Trust Interest Report (ITI Report)

108

.017

3661

111

.105

625

.007

8125

.011

4583

333

.047

8125

.026

0416

667

0% 0% 0%0%0%0%

ITI report…Which one is 5% or more??

1. .01736611112. .10562500003. .00781250004. .01145833335. .04781250006. .0260416667

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ITI report which is 5% or more??

.0173661111 on Ft Peck

.1056250000 on Flathead = 10.5%

.0078125000 on Blackfeet

.0114583333 on Ft Peck

.0478125000 on Flathead

.0260416667 on Ft Hall

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AIPRA distribution with 5% or more depends on:

• Marital Status• Descendants

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Family Situations

Single Married

(5% & more, no will)

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Example 1:

Single Person

• No Children• Parents are Living

(5% or more, no will)

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5% or more on ITI

.0173661111 = 1.7% Ft Peck

.1056250000 = 10.0% Flathead

.5078125000 = 50.0% Blackfeet

.0114583333 = 1.1% Ft Peck

.0878125000 = 8.0% Flathead

.0260416667 = 2.6% Ft Hall

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Mother

Single Person

Passed Away

Father

Both parents alive

(5% or more, no will)(5% or more, no will)

115

Mother

1/2Single Person

Passed Away

Father

1/2

Parents inherit equally


116

Example 2: Single Person

• No children• Mother is only living parent


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5% or more on ITI

.0173661111 = 1.7% Ft Peck

.1056250000 = 10.0% Flathead

.5078125000 = 50.0% Blackfeet

.0114583333 = 1.1% Ft Peck

.0878125000 = 8.0% Flathead

.0260416667 = 2.6% Ft Hall

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Mother

Single Person

Passed Away

FatherDeceased

Mother is the Survivor


119

Mother

ALL

Single Person

Passed Away

FatherDeceased

Mother receives all


120

Example : Single Person

•No children•Parents are alive•3 living sisters(5% or more, no will)

121

Single person passed

away after Father & Mother

Sis Sis Sis

Survivors: 3 sisters

Father Mother


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Who receives interests when they are 5% or more if a single person dies without a will?

1. Mother & Dad equally

2. Sisters equally

3. 1/5 each (mother, dad, three sisters)

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Sis0

Sis0

Sis0

Priority parents


Father1/2

Mother1/2

124


•No children•Parents are deceased

•3 living sisters


125



Sis Sis Sis

Survivors: 3 sisters

Father Mother


126

Single Person

If parents are deceased, undivided interest passes equally to:

•Brothers & Sisters


127



1/3 1/3 1/3

Equal Amounts to Sisters

Father Mother


128

Example 4:

Single Person

•No children•Parents are deceased•2 sisters are deceased•2 brothers are living

(5% or more, no will) more, no will)

129

BrotherDied 2012

Niece

SisterDied 1995

Nephew Nephew

SisterDied 1982

Nephew

Brother

A

Nephew Nephew

Brother

B

Two Brothers Survive

(5% or more & no will)

Sisters passedaway before brother

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Who receives interests of 5% or more no will?

1. Brothers equally 1/2

2. Niece & nephews equally 1/6 each

3. Brothers, niece & nephews equally 1/8 each

4. Tribe

131

BrotherDied 2012

Niece

0

SisterDied 1995

Nephew

0Nephew

0

SisterDied 1982

Nephew

0

Brother

1/2

Nephew

0Nephew

0

Brother

1/2

Equally to Living Brothers


132


•No children•Parents are deceased•2 sisters & 1 brother are deceased

•1 brother is living(5% or more, no will)

133

BachelorBrother

Died 2012

Niece

SisterDied 1995

Nephew Nephew

SisterDied 1982

Nephew

BrotherrDied 1980

Nephew Nephew

Brother



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Who receives of 5% or more interests no will?

1. Living Brother all 2. Niece & nephews

equally 1/6 each3. Living brother,

niece & nephew equally 1/7 each

4. Tribe

135

BachelorBrother

Died 2012

Niece

0

SisterDied 1995

Nephew

0Nephew

0

SisterDied 1982

Nephew

0

BrotherDied 1980

Nephew

0Nephew

0

Brother

ALL

Living brother receives all


136

Example 6:

Single Person•No children•Parents are deceased•All sisters & brothers deceased

•Survived by niece & nephews


137

BachelorBrother

Died 2012

Niece

SisterDied 1995

Nephew Nephew

SisterDied 1982

Nephew

BrotherDied 1980

Nephew Nephew

BrotherDied 1971

Nieces & Nephews Do NOT Inherit

(5% or more no will)

138 Niece & nephew... Tribe Federal govern...

33% 33%33%

Who receives interests of 5% or more no will?

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1. Niece & nephews equally 1/6 each

2. Tribe3. Federal

government

139

BachelorBrother

Died 2012

Niece

0

SisterDied 1995

Nephew

0Nephew

0

SisterDied 1982

Nephew

0

BrotherDied 1980

Nephew

0Nephew

0

BrotherDied 1971

Nieces & Nephews Do NOT Inherit

(5% or more no will)

140

Distribution

•If no surviving eligible:Parent, orBrothers or Sisters

•Land passes to•Tribe where interest in parcel is located


141

Example 7:

• Single With Children


142

Survivors : 3 children

SingleParent

PassedAway

Child Child Child


143 Childrenequal...

Tribe State of MT FederalGovern...

25% 25%25%25%

Who receives interests of 5% or more with no will?

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1. Children equally 1/3 each

2. Tribe3. State of MT4. Federal

Government

144

Children Share Equally

Parent Passed

Away

1/3 1/3 1/3

(5% & more, no (5% & more, no will)will)

145

Example 8:

• Single person: 3 living children 6 living grandchildren


146

Survivors Children & Grandchildren

Parent

Child Child Child

Grandchild

Grandchild

Grandchild

Grandchild

Grandchild

Grandchild

Grandchildren


147 Children equal... Grandchildren ... Children & gra... Tribe

25% 25%25%25%

Who receives interests of 5% or more no written will?

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1. Children equally 1/3 each

2. Grandchildren equally 1/6 each

3. Children & grandchildren equally 1/9 each

4. Tribe

148

Children Share Equally

Parent

1/3 1/3 1/3

0 0 00 0 0Grandchildren


149

Example 9:

•What if ?•1 deceased child who is survived by a child

•2 living children who have children


150

Parent

Son Son Daughter

GrandChild

GrandChild

GrandChild

GrandChild

GrandChild

GrandChild

Child passedaway

before parent

Grandchildren


What does grandchild receive, if any?

151

What share does grandchild receive, if any, if parent owned 5% or more and no will?

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6 None 1/3 1/8 1/6

25% 25%25%25%

1.None2.1/33.1/84.1/6

152

Legal Term

Right of Representation

•Grandchildren have a right to inherit what their parent would have received if he/she had lived


153

Grandchild inherits by right of representation

Parent

o 1/3 1/3

1/3 0 00 0 0

Child passedaway

before parent

Grandchildren


154

Example 10:

•What if ? a deceased son who is survived by 1 child

a deceased daughter who is survived by 2 children


155

Parent

Son Son Daughter

GrandChild

GrandChild

Grandchild

GrandChild

Grandchild

Grand

ChildGrandchild

Parent

Son Son Daughter

GrandChild

GrandChild

Grandchild

GrandChild

Grandchild

Grand

ChildGrandchild

Two children passed

away before parent

Grandchildren

(5% & (5% & more, no more, no will)will)

Survivors: 1 Child & 6 Grandchildren

Grandchildren

Two children passed

away before parent

Grandchildren

156 Nothing 1/3 1/6 1/7

0% 0%0%0%

What will grandchild with blue lighting bolt receive, if anything, if grandparent owned 5% more more?1.Nothing2.1/33.1/64.1/7

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157


•Grandchildren receive the share their parent would have received if he/she had lived.


158

Parent

Son Son 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren


Survivors: 1 Child & 6 Grandchildren

159

Example 11:

•What if?a deceased son who is survived by 1 child

a deceased daughter who is survived by 3 children


160

Survivors: Child & Grandchildren

ParentPasses Away

Son ? Daughter

? ? ?? ? ?Grandchildren

(5% & (5% & more, no more, no will)will)

161


•Grandchildren receive the share their parent would have received if he/she had lived.


162

Survivors: Child & Grandchildren

ParentPasses Away

Son 1/3 Daughter

1/3 0 1/90 1/9 1/9Grandchildren


163

Example 12:

• What if?• All children passed away before their parents & grandchildren are living?


164

Survivors: Grandchildren

ParentPasses Away

Son Son Daughter

GrandChild

A

GrandChild

B

GrandChild

D

GrandChild

C

GrandChild

E

GrandChild

F

All children passed

away before parent

Grandchildren


165 1/9 1/3 1/6 None,

passes t... None,

passes t...

20% 20% 20%20%20%

What share, if any, will grandchild D receive if grandchildren are only survivors & Grandparent owned 5% or more?

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1. 1/92. 1/33. 1/64. None, passes to

Tribe5. None, passes to

federal gov’t

166

Survivors: Grandchildren

ParentPasses Away

Son Son Daughter

1/3 1/6 1/91/6 1/9 1/9

All children passed

away before parent

Grandchildren


167

Example 13:

• What if?• survivors are children, grandchildren & great grandchildren?(5% or more, no will)(5% or more, no will)

168

John

Daughter 1/2 Son

Grandchild 0 1/60 1/6 1/6

0

Child passed

away before parent

John’sGrandchildren

Child passed

away before parent

John’sGreat-grandchild

169

Family Situation

•Married person

170

Example 1: Married

• No children• Parents are alive


171

ITI Report Ownership

• .0173661111 = 1.7% Ft Peck• .1056250000 = 10.0% Ft Belknap• .5078125000 = 50.0% Blackfeet• .0114583333 = 1.1% Ft Peck• .0878125000 = 8.0% Standing R• .0260416667 = 2.6% Ft Hall


172

Husband dies; Wife Has Priority

Father Mother

Husband

Wife receives life estate

(5% & more, no will)(5% & more, no will)

173

Wife dies; Husband has priority

Father Mother

Husbandreceives life estate

Wife

(5% & more, no will)(5% & more, no will)

174

Example 2: Married

• Husband passes away Wife living 3 living children


175

Wife

TheirChild

TheirChild

TheirChild

Husband

Survivors(5% or more, no will)(5% or more, no will)

176

ITI Report Ownership

.0173661111 = 1.7% Ft Peck

.1056250000 = 10.0% Ft Belknap

.5078125000 = 50.0% Blackfeet

.0114583333 = 1.1% Ft Peck

.0878125000 = 8.0% Standing R

.0260416667 = 2.6% Ft Hall


177

Wife Life Estate

TheirChild

TheirChild

TheirChild

Husband

Wife – Life Estate


178

Married – no will5% or more interest• Trust property passes to surviving spouse as a life estate without regard to waste.

179

Legal Term

•Without regard to waste: Life tenant can do anything to land while the he/she is alive

180

Life Estate for Surviving Spouse

• Any income from trust lands during his/her lifetime

181

Life estate income

• Spouse receives Lease Royalties Mineral income Rent

182

Passing of Spouse

•Property held in life estate for wife (mother) passes to the remaindermenChildren

183

Wife Life Estate

TheirChild

TheirChild

TheirChild

Husband

Trust Property (5% or more, no will)

Remainder Interest

184

Remainderman - children

.1073661111

.0056250000

.5000000000

.2324583333

.1478125000

.0090416667

AggregateAggregate

DecimalDecimal = 10.7 %= 0.6%= 50.0 %= 23.2 %= 14.7 %= 0.9 %

Percent

185

Remainder Interests

Parent

1/3 1/3 1/3


(5% & more, (5% & more, no no will)will)

186

Legal Term

•Grandchildren inherit remainder interests by Right of Representation


187

Remainder Interests

Parent

Son 1/3 1/3

1/3 0 00 0 0

Child passedaway

before parent

Grandchildren


188

Remainder Interests

Parent

1/3 1/3 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren


189

Remainder Interests

ParentPasses

Away

Son 1/3 Daughter

1/3 0 1/90 1/9 1/9

Grandchildren


190

Summary•Retaining & receiving trust land depends on:Eligible heirs% interest ownedFamily situation Whether a will is written

191

Writing a Will

•Fact Sheet #9

192

Written Will• Provides you with the ability to control where your undivided interests in trust lands & IIM money goes

193

At what age can I write a will?

• Age 18 & older

194

Does a will have to be written?•YES!!!

– Includes• Typed• Computer software

195

Does my will have to be witnessed?

• Federal law--YES• Two witnesses

– Neither “should” be a beneficiary in the will

196

HOLOGRAPHIC WILL—AIPRA rulesSignature & provisions in handwriting of the will maker

2 witnesses

197

CSKT• Limited will drafting services

•Also stores wills

198

AIPRA•Special Rule

–if undivided interests are left to more than 1 person in a written will

199

AIPRA presumption

•Heirs Inherit –Joint tenancy with right of survivorship

200

JOINT TENANCY

• On passing of one–survivors take all

201

Example 1:

•Mary wills her land to her 3 children equally

202

AIPRA assumes joint tenancy among children

Parent Passed

Away

JT JT JT

203

Later one child passes away

Parent PassedAway

JT JT JT

204

Second child passes away

Parent Passed

Away

JT JT Solely owned

205

Where to keep your will?

• Safe Place– CSKT offers will storage

206

Changing will

• Can be changed during lifetime as long as you are competent

207

Review Will •Marriage•Remarriage•Divorce•Birth of child•Adoption of child•Passing of heir (con’d)

208

Review Will (cont’d) •Move to another reservation

•Acquire additional property

209

Adopted Child

• Tribal Adoption Laws– treated as child of will maker’s, not biological

parents’ child

210

Pretermitted Child (omitted)•If not mentioned in will •May be able to inherit same share that he/she would have received without a will

211

Divorce• Under AIPRA

– Former spouse does not receive property mentioned in will

212

Separation•AIPRA

–Separation is not equivalent to divorce

–Still married even if separated for a long time

213

Self Proved Will•Affidavit

–Will maker & witnesses sign & acknowledge they were witnessing the signing of will before notary

214

Self Proved Will

•Notary–Also signs & dates the will

–Use his/her official seal on the will

215

Residuary Clause

• Last clause– Person to receive any part that may be left after rest of will clauses are carried out

216

Summary•Have residuary clause•Be sure to date & sign signature

•Signatures of 2 witnesses are required

217

More Information

•Fact Sheet #9

Writing a Will

218

American Indian Probate Reform Act of 2004(AIPRA)

219

American Indian Probate Reform Act (AIPRA)

IIM Accounts are in Trust

220

Your (IIM) Account

• Fact Sheet #13

What happens to your IIM money if you pass away without a will?

221

IIM Accounts• Money earned from

Leases

Timber/Land Sales

Grazing

Mineral Royalty Payments

222

Do I have an IIM account?•CSKT Technicians for IIM accounts•Debbie Caye•Dani Bisson

•406-675-2700•Exts 1015, 1319

223

How to get my IIM Ledger?

•Toll Free1-888-678-6836

•Enrollment Number•Last 4 numbers of SS#

•Date of Birth•Mailing Address

224

Trust Status•Indian spouse & eligible heirs– retain trust status of money in account

225

Non-Indians•Secretary of Interior distributes IIM monies directly to them

226

IIM Distribution

•Depends on Family Situation– Single– Married

(no will)

227

Example 1: Single

•No spouse•No children•No grandchildren•No great grandchildren

–Parents are living

228

Mother

1/2

Single Person

Father

1/2

Survivors: Parents

229

IIM account: $5,000

Mother

$2,500Dad

$2,500

Single Person

230

Mother

ALL

Single Person

Father

Survivor: One Parent

231

Mother

$5,000

Single Person

Father

Survivor: One parent

232

Example 2:•If no spouse, no children, no grandchildren, no great grandchildren or no parents

–Brothers & sisters split IIM money

233



1/3 1/3 1/3

IIM equally to brothers & sisters

Father Mother

234



$1,000 $1,000$1,000

IIM Account: $3,000

Father Mother

235


•No children•Parents deceased•Brothers & sisters

• Deceased & living

(no will)

236

Brother

Niece

Sister

Nephew Nephew

Sister

Nephew

Brother

Nephew Nephew

Brother

2 living, 2 deceased(no will)(no will)Sisters passed

away before brother

237

IIM Distribution

BachelorBrother

Niece

0

Sister

Nephew

0Nephew

0

Sister

Nephew

0

Brother

1/2

Nephew

0Nephew

0

Brother

1/2

238

IIM Distribution

Brother

Niece

0

Sister

Nephew

0Nephew

0

Sister

Nephew

0

Brother

$1,500

Nephew

0Nephew

0

Brother

$1,500

239

Brother

Niece

0

Sister

Nephew

0Nephew

0

Sister

Nephew

0

Brother

$1,500

Nephew

0Nephew

0

Brother

$3,000

IIM Distribution

240

Example 4:

•Single– with children

(no will)(no will)

241

Survivors : 3 kidsSingleParent PassedAway

Child Child Child

242

IIM passes in equal shares

Parent PassedAway

1/3 1/3 1/3

(no will)

243

$3,000 in IIM account passes in equal shares

Parent PassedAway

$1,000 $1,000 $1,000

(no will)(no will)

244

Example 5:

•Single person– 3 living children– 6 living grandchildren

(no will)(no will)

245

Equal shares to children

Parent

1/3 1/3 1/3


(no will)

246

Equal shares to children

Parent

$1,000 $1,000 $1,000


(no will)(no will)

247

Example 6: IIM

•What if ?•a person (with 1 child) passes away before parents?

(no will)

248

Parent

Son ? ?

? ? ??0

? ?/ ? //

Person passedaway

before parent

Grandchildren

(no will)

IIM Distribution

249


• Grandchildren receive the IIM share their parent would have received if he/she had lived

(no will)

250

IIM: Children & Grandchild inherit

Parent

Son 1/3 1/3

1/3 0 00 0

Child passedaway

before parent

0Grandchildren

(no will)

251

Example 7:

•What if ?• A son with 1 child• A daughter with 2 children passed away before parent?

(no will)

252

Parent

Son Son 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren

(no will)

IIM Distribution

253

Example 8:

•What if ?• A son with 1 child• A daughter with 3 children passed away before parent?

(no will)

254

IIM Distribution

ParentPasses Away

Son 1/3 Daughter

1/3 0 1/90 1/9 1/9Grandchildren

Child passed

away before parent

Child passed

away before parent

255

Example 9:•What if ?

•All children pass away before parents

• There are 6 living grandchildren

256

Survivors : Grandchildren

ParentPasses Away

Son Son Daughter

1/3 1/6 1/91/6 1/9 1/9

All kids passed

away before parent

Grandchildren

(no will)(no will)

257

Summary

•IIM Account Distribution– depends upon family situation for a single person

(no will)

258

Family Situation

• Married person

259

Example 1: Married

•Survivors –Wife–No children

(no will)

260

WifeAll

Husband

IIM Account

261

HusbandWife

$2,000

$2,000 IIM

262

Example 2: Married

•Survivors –Wife–3 Children

(no will)

263

Wife

TheirChild

TheirChild

TheirChild

Husband

IIM Account

Wife

TheirChild

TheirChild

TheirChild

Husband

264

Who receives the money in IIM account?

All to wife All tochildre...

½ to wife, ½d...

1/3 to wife,2...

0% 0%0%0%

1. All to wife2. All to children3. ½ to wife, ½

divided among children

4. 1/3 to wife, 2/3 divided among children

CountdoCountdownwn

8

265

IIM Account-no will

•Surviving Spouse

•1/3

266

IIM Account-no will• Children split remaining

•2/3

267

Wife1/3

TheirChild2/9

TheirChild2/9

TheirChild2/9

Husband

IIM Accounts

Equally divide 2/3

268

Wife1/3

$3,000

TheirChild

$2,000

TheirChild

$2,000

TheirChild

$2,000

Husband

IIM $9,000

Equally divide 2/3 = $6,000

269

Example 3: Married

•Survivors –Wife–2 living children–1 deceased child with children

270

Wife1/3

$3,000

TheirChild

$2,000

TheirChild

$2,000

TheirChild

$2,000

Husband $9,000

Equally divide 2/3 = $6,000

Grand Child

$1,000

Grand Child

$1,000

Grand Child

0

271

Summary

•Surviving Spouse –All if no children

272

Summary•If there are biological children –Surviving Spouse –1/3

•Children –2/3

273

More Information

•Fact Sheet #13

What happens to your IIM money if you pass away without a will?

American Indian Probate Reform Act of 2004 (AIPRA)

Documents

Transcript of American Indian Probate Reform Act of 2004 (AIPRA)