Allowed will inheritance by heirs of lineal descent o

1
The Full Meaning of AIPRAAmerican Indian
Probate Reform Act of 2004
Danielle Gunn University of Idaho Agricultural
Extension Educator
2
AIPRA

• How???
• Why???
• Who???
• What??

3
History of Fractionation

• General Allotment Act of 1887
• Indian owned trust allotments
• State Law
• 1902
• Heirs were authorized to convey trust allotments
• 1913
• Wills were allowed
• 1984
• Power conferred to federal courts

4
Evolution of AIPRA

• IRA Act of 1934
• Limited inheritance by will to heirs
• 1980 Amendment
• Allowed will inheritance by heirs of lineal
  descent or tribal members
• Indian Land Consolidation Act of 1984
• Designated Fractional interest of 2 to tribe

5
Final Evolution

• Indian Land Consolidation Act of 2000
• Designed to reduce fractionation
• AIPRA

6
AIPRA

• Regulates
• Trust Land
• Regardless of location, except Alaska
• IIM Accounts
• Doesnt affect personal property

7
AIPRA

• An approved Tribal Probate Code takes precedence
  over AIPRA
• Effective for persons who pass away on or after
  June 20, 2006

8
Fee Land

• State law applies if you pass away without a
  written will.

9
Purpose of AIPRA

• Prevent Further Fractionation of Trust Lands.
• Encourage Consolidation of Indian Land Ownership.

10
Fractionation

• An increasing number of owners for a land parcel
  with each passing generation.
• 6 generation example

11
1st Generation
Original Allottee
12
6th Generation
Original Allottee
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
1/432
1/432
1/432
13
1st Generation
1,002 Annual Income
14
6th Generation
1,002 Annual Income
334
334
334
111.33
111.33
111.33
27.83
27.83
27.83
27.83
6.96
6.96
6.96
6.96
2.32
2.32
2.32
15
As of 2006, the average trust allotment has..

• 17.4 owners.

16
Or Even Worse.

• Some shares are as small as
• 1
• 9,000,000 of a parcel.

• Thats equivalent to 1.74 square feet!

17
AIPRA Heirs

• Interests must pass to
• Eligible Heirs
• Children
• Grandchildren
• Great grandchildren
• Brothers sisters
• Half brothers sisters by blood
• Parents

18
Eligible heirs must also be

• Indian or
• Lineal descendants within 2 degrees of blood
  relationship of an Indian.

19
Indian - AIPRA

• 1. Member of a federally recognized Indian
  tribe.
• Eligible to become a member of a federally
  recognized Indian tribe.
• Owner of trust or restricted land on or before
  October 27, 2004.
• Meets the definition of Indian under the 1934
  Indian Reorganization Act (IRA).
• Person of Indian ancestry who owns trust or
  restricted land in California.

20
AIPRA

• Depends upon
• Percentage of undivided interests owned by person
  who passed.
• Less than 5
• 5 or more

21
AIPRA Your ITI Report

• Amount of undivided interest owned in each parcel
• BIA Regional Office
• Portland, OR
• Local BIA Office
• Realty Department
• 208-238-7928

22
Example ITI Report

• .0173661111 1.7 Ft Peck
• .156250000 15.6 Ft Belknap
• .0078125000 0.8 Blackfeet
• .114583333 11.5 Ft Peck
• .0078125000 0.8 Standing R
• .0260416667 2.6 Ft Hall

23
ITI AIPRA

• Convert (.) to a !
• .01736111111.7
• Determine of ownership
• Less than 5
• 5 or more

24
Less than 5

• If your undivided interest in each allotment is
• less than 5
• What happens if you pass away without writing a
  will?

25
Single Heir Rule

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

26
Single Heir Rule
(less than 5 no will)

• First priority
• Oldest surviving eligible child
• Second priority
• Oldest surviving eligible grandchild
• Third priority
• Oldest surviving eligible great-grandchild
• Fourth priority
• Tribe

27
Example 1

• Single person has no written will
• No Spouse
• No Children
• No Grandchildren
• No Great Grandchildren

28
ITI Report

• .0173661111 1.7 Ft Peck
• .0156250000 1.6 Ft Belknap
• .0078125000 0.8 Blackfeet
• .0114583333 1.1 Ft Peck
• .0078125000 0.8 Standing R
• .0260416667 2.6 Ft Hall
• (Each is less than 5)

29
Single Heir Rule
(no will)

• Undivided interest of less than 5 passes to
• Tribe with jurisdiction

30
Example 2

• Single, no spouse
• Living Children
• Children
• Biological
• Legally adopted

(less than 5 no will)
31
Single Heir Rule

• All interests pass to oldest surviving eligible
  child

(less than 5 no will)
32
Married--AIPRA

• Includes
• Separated
• Legally Separated

33
Example 1 Married
(less than 5 no will)

• Husband passes away
• Survivor
• Wife
• not living on a parcel
• No Children

34
Example 1 Married

• Wife not living on parcel
• Tribe receives all interests
• Spouse receives nothing

(less than 5 no will)
35
Example 2

• Survivors
• Husband
• Not living on the parcel
• 3 Children

36
Example 2 Ages of Children
(less than 5 no will)
Husband
Wife
Child Age 18
Child Age 22
Child Age 24
37
Single Heir Rule
(no will)

• Interests of less than 5
• pass to oldest surviving eligible child
• Husband receives Ø.

38
Example 3

• Survivors
• Wife lives on one of the parcels
• 3 Children

(less than 5 no will)
39
Children Spouse
Spouse Lives on Fort Peck parcel
Husband
Child Age 18
Child Age 22
Child Age 24
40
Exception to Single Heir Rule

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

(less than 5 no will)
41
Life Estate

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

(less than 5 no will)
42
Single Heir Rule

• After spouse passes
• Oldest child receives
• Remainder interest
• Home,
• Land, and
• Parcels with interests of less than 5.

43
Remainderman

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

44
Summary Less than 5 (no will)

• Single Heir Rule
• lt5 interests pass to oldest child.
• Exception
• Spouse living on parcel receives life
  estate.

45
5 or More Interest

• What happens if you pass away without a
  written will?
• Depends on
• Marital Status
• Descendants

46
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

(5 or more, no will)
47
Example 1 Single Person

• No Children
• Parents are Living

(5 or more, no will)
48
Parents inherit equally
Mother 1/2
Father 1/2
Single Person Passed Away
(5 or more, no will)
49
Example 2 Single Person

• Parents are deceased
• Living brothers sisters
• Undivided interest passes equally to
• Brothers Sisters

50
What If?

• No surviving eligible Parent, Brothers or Sisters
• Land passes to
• Tribe where interest in parcel is located
• Nieces and nephews dont inherit.

(5 or more, no will)
51
Example 3

• Single
• With Children

(5 more, no will)
52
Children Share Equally
(5 more, no will)
53
Example 4
(5 or more, no will)

• What if ?
• 1 deceased child with a child
• 2 living children with children

54
Child passed away before parent
What does grandchild receive, if any?
(5 more, no will)
Grandchildren
55
Legal Term

• Grandchildren inherit by
• Right of Representation

(5 more, no will)
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Right of Representation

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

57
Grandchild inherits by right of representation
Child passed away before parent
(5 more, no will)
Grandchildren
58
Example 1 Married
(5 or more, no will)

• No children
• Parents are alive

59
Spouse Has Priority
(5 more, no will)
Mother
Father
Wife receives life estate
Husband
60
Example 2 Married

• Husband passes away
• Wife living
• 3 living children

(5 or more, no will)
61
Wife Life Estate
Wife Life Estate
Husband
Remainder Interest
Their Child
Their Child
Their Child
62
Married no will5 or more interest

• Trust property passes to surviving spouse as a
  life estate without regard to waste.

63
Without Regard to Waste

• Life tenant can do anything to land while he or
  she is alive.

64
Life Estate for Surviving Spouse

• Spouse receives
• Any income from trust lands during his/her
  lifetime
• Examples
• Lease Payments
• Royalties
• Mineral Income
• Rent

65
Passing of Spouse

• Property held in life estate passes to the
  remaindermen
• Children

66
AIPRA Summary

• Retaining receiving trust land depends on
• Eligible heirs
• interest owned
• Family situation
• Whether a will is written or not

67
Writing a Will

• Puts you in charge!
• Passes undivided interests in trust property to
  whomever you choose.

68
WILLS

• Must be written!
• Includes
• Computer/Typed
• Handwritten/Holographic
• Can write a will at age 18 and older.
• Federal law
• Two witnesses
• Cant be a beneficiary in the will

69
Changing a Will

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

70
Review Will

• Marriage
• Divorce
• Birth
• Adoption
• Heir passes
• Move
• Acquire additional property

71
BIA Policy

• Agency staff does not
• write wills
• store wills

72
AIPRA

• Special Rule
• if undivided interests are left to more than 1
  person in a written will

73
AIPRA Presumption

• Heirs Inherit By
• Joint tenancy with right of survivorship

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JOINT TENANCY

• On passing of one
• survivors take all

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Example 1

• Mary wills her land to her 3 children equally

76
AIPRA Assumes Joint Tenancy
77
Later one child passes away
78
Second child passes away
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Will Summary

• To Whom
• Residuary clause
• Person to receive any part that may be left after
  will clauses are carried out
• Date will makers signature
• Signatures of 2 witnesses

80
AIPRA Summary

• Complex law designed to reduce fractionation.
• Affects trust property.
• Writing a will ensures your land and property are
  distributed as desired.

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Additional Information

• Detailed PowerPoint available
• 14 Fact Sheets
• Order Fact Sheets through Fort Hall Extension
  Office
• Contact Danielle
• 208-478-3777

82
Questions
CREDITS Floyd H. Azure II Montana
State University Extension Undergraduate Student
AssistantMarsha A. GoettingMontana State
University Extension Family Economics Specialist
Department of Agricultural Economics
EconomicsDanielle GunnUniversity of Idaho,
Agricultural Extension Agent Carol
Pabawena University of Idaho, Teaching Assistant