American Indian Probate Reform Act of 2004 (AIPRA)

1
American Indian Probate Reform Act of
2004(AIPRA)
2
Marsha A. GoettingExtension Family Economics
Specialist Department of Agricultural
Economics Economics Montana State University
3
AIPRA Probate Sections

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

4
Purpose of AIPRA

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

5
AIPRA

• State law no longer applies to Trust Property
  when a person passes away without a will.

6
14 Fact Sheets

• Define
• Describe
• Illustrations

7
Fact Sheet 2

• Fractionation Inherited Undivided Interests

8
Definition

• Fractionation
• An increasing number of owners for a land parcel
  with each passing generation

9
Fractionation

• 6 generation family

10
1st Generation
Original Allottee
11
2nd Generation
Original Allottee
1/3
1/3
1/3
12
3rd Generation
Original Allottee
1/3
1/3
1/3
1/9
1/9
1/9
13
4th Generation
Original Allottee
1/3
1/3
1/3
1/9
1/9
1/9
1/36
1/36
1/36
1/36
14
5th 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
15
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
?
?
?
16
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
17
Fractionation by

• Example
• Lease Dollar Amounts

18
1st Generation
1,002 Annual Income
19
2nd Generation
1,002 Annual Income
334
334
334
20
3th Generation
1,002 Annual Income
334
334
334
111.33
111.33
111.33
21
4th Generation
1,002 Annual Income
334
334
334
111.33
111.33
111.33
27.83
27.83
27.83
27.83
22
5th 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
23
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
24
AIPRA controls Trust Property

• Trust Lands
• Throughout the United States
• IIM Accounts
• (Individual Indian Money IIM)

25
Personal Property

• AIPRA does not affect
• Checking Accounts
• Saving Accounts
• Vehicles
• State of residence or tribal probate laws
  apply

26
AIPRA distribution among eligible heirs

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

27
Do you own

• 5 or more?
• Less than 5?

28
Fact Sheet 4

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

29
Where do I get my ITI Report?

• Local BIA Office
• Realty Department
• Lame Deer

30
Where do I get my ITI Report?

• BIA Regional Office
• Rocky Mountain Region
• Billings 406-247-7943

31
Important fact on ITI Report

• Amount of undivided interest owned in each
  parcel.

32
ITI Report AGGREGATE DECIMAL

• Right side, lower middle
• Decimal
• .0173611111

33
Because AIPRA uses percent

• Convert Decimal to
• .0173611111
• 1.7

34
Example ITI Report

• .0173661111 1.7 Ft Peck
• .156250000 15.6 Lame Deer
• .0078125000 0.8 Blackfeet
• .114583333 11.5 Ft Peck
• .0078125000 0.8 Lame Deer
• .0260416667 2.6 Ft Hall

35
Use ITI Report to determine of ownership

• 5 or more?
• Less than 5?

36
Fact Sheet 7

• If your undivided interest in each allotment is
• less than 5
• What Happens If You Pass Away Without Writing a
  Will?

37
Single Heir Rule

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

38
Single Heir Rule
(less than 5 no will)

• First priority
• Oldest surviving eligible child

39
Single Heir Rule
(less than 5 no will)

• If no surviving eligible child
• Oldest surviving eligible grandchild

40
Single Heir Rule
(less than 5 no will)

• If no surviving eligible grandchild
• Oldest surviving eligible great- grandchild

41
Single Heir Rule
(less than 5 no will)

• If no surviving eligible child, grandchild or
  great-grandchild
• Tribe

42
Single person--

• Never married
• Widowed
• Divorced
• Common Law

(less than 5 no will)
43
Example 1

• Person has no written will
• No Spouse
• No Children
• No Grandchildren
• No Great Grandchildren

44
ITI Report

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

45
Single Heir Rule
(no will)

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

46
Tribe Inherits

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

47
Example 2 Single, no spouse

• Has living Children

(less than 5 no will)
48
Children defined (AIPRA)

• Biological
• Legally adopted

49
Example 2 Dad passes Survivors 2 kids
DAD
Child Age 19
Child Age 29
(less than 5 no will)
50
Dads ITI Report

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

51
Single Heir Rule

• All interests pass to oldest surviving eligible
  child

(less than 5 no will)
52
Which child receives?
Child Age 19
DAD
Child Age 29
(less than 5 no will)
53
Oldest Child Age 29

• .017366111 1.7 Ft Peck
• .015625000 1.6 Ft Belknap
• .007812500 0.8 Blackfeet
• .011458333 1.1 Ft Peck
• .007812500 0.8 Lame Deer
• .026041666 2.6 Ft Hall

(Receives less than 5 interest on each
reservation)
54
Married--AIPRA

• Includes
• Separated
• Legal separation

55
Example 4 Ages of Children
(less than 5 no will)
Husband
Wife
Child Age 18
Child Age 22
Child Age 24
56
Moms ITI Report

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

57
Single Heir Rule
(no will)

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

58
Survivors Husband Children(less than 5 no
will)
Husband 0
Wife
Child Age 18 0
Child Age 22 0
Child Age 24 All
59
24 year old receives all

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

60
Children Spouse
Spouse Lives on Lame Deer parcel
Husband
Child Age 18
Child Age 22
Child Age 24
61
Exception Single Heir Rule

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

(less than 5 no will)
62
Life Estate

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

(less than 5 no will)
63
Single Heir Rule No will

• Oldest child receives
• Remainder interest
• home
• land
• Receives parcels with interests of less than 5.

64
Remainderman

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

65
Oldest ChildSpouse life estate

• .017366111 1.7 Lame Deer
• .015625000 1.6 Ft Belknap
• .007812500 0.8 Blackfeet
• .011458333 1.1 Ft Peck
• .007812500 0.8 Lame Deer
• .026041666 2.6 Ft Hall

(less than 5 no will)
66
Trust Land
(less than 5 no will)
Wife Life Estate
Husband
Child Age 18 0
Child Age 22 0
Child Age 24 parcels with less than 5
67
Spouse passes away
(less than 5 no will)
Wife
Husband
Child 0
Oldest Child Age 24
Child 0
68
Upon Mothers passing oldest child receives

• Remainder interest
• 1.7 parcel Lame Deer
• Includes family home

69
Oldest Child Receives remainder interest

• .017366111 1.7 Lame Deer
• .015625000 1.6 Ft Belknap
• .007812500 0.8 Blackfeet
• .011458333 1.1 Ft Peck
• .007812500 0.8 Lame Deer
• .026041666 2.6 Ft Hall

(less than 5 no will)
70
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.

71
Fact Sheet 6

• Your Undivided Interest
• 5 or more
• What Happens If You Pass Away Without a
  Written Will?

72
To find out how much interest you own

• Check your Individual Trust Interest Report (ITI
  Report)

73
ITI Report Ownership

• .0173661111 1.7 Ft Peck
• .1056250000 10.6 Ft Belknap
• .5078125000 50.8 Blackfeet
• .0114583333 1.1 Ft Peck
• .0878125000 8.8 Lame Deer
• .0260416667 2.6 Ft Hall

(5 or more)
74
ITI Report Ownership

• .0173661111 1.7 Ft Peck
• .1056250000 10.6 Ft Belknap
• .5078125000 50.8 Blackfeet
• .0114583333 1.1 Ft Peck
• .0878125000 8.8 Lame Deer
• .0260416667 2.6 Ft Hall

(5 or more)
75
AIPRA distribution depends on

• Marital Status
• Descendants

76
Family Situations

• Single
• Married

(5 more, no will)
77
Both parents alive
Mother
Father
Single Person Passed Away
(5 or more, no will)
78
Parents inherit equally
Mother 1/2
Father 1/2
Single Person Passed Away
(5 or more, no will)
79
Mother receives all
Mother ALL
Father Deceased
Single Person Passed Away
(5 or more, no will)
80
Survivors 3 sisters
Father
Mother
Single person passed away after Father
Mother
Sis
Sis
Sis
(5 or more, no will)
81
Equal Amounts to Sisters
Father
Mother
Single person passed away after Father
Mother
1/3
1/3
1/3
(5 or more, no will)
82
Two Brothers Survive
Sisters passed away before brother
(5 or more no will)
83
Equally to Living Brothers
(5 or more no will)
84
Living brother receives all
(5 or more no will)
85
Nieces Nephews Do NOT Inherit
(5 or more no will)
86
Distribution

• If no surviving eligible
• Parent, or
• Brothers or Sisters
• Land passes to
• Tribe where interest in parcel is located

(5 or more, no will)
87
Example

• Single
• With Children

(5 more, no will)
88
Survivors 3 children
(5 more, no will)
89
Children Share Equally
(5 more, no will)
90
Grandchildren do not inherit
(5 more, no will)
Grandchildren
91
Child passed away before parent
What does grandchild receive, if any?
(5 more, no will)
Grandchildren
92
Legal Term

• Grandchildren inherit by
• Right of Representation

(5 more, no will)
93
Right of Representation

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

94
Grandchild inherits by right of representation
Child passed away before parent
(5 more, no will)
Grandchildren
95
Survivors Child Grandchildren
Two children passed away before parent
(5 more, no will)
Grandchildren
96
Survivors Child Grandchildren
Two children passed away before parent
(5 more, no will)
Grandchildren
97
Survivors Child Grandchildren
(5 more, no will)
Grandchildren
98
Survivors Child Grandchildren
(5 more, no will)
Grandchildren
99
Survivors Child Grandchildren
(5 more, no will)
Grandchildren
100
Survivors Grandchildren
All children passed away before parent
(5 more, no will)
Grandchildren
101
Child passed away before parent
Child passed away before parent
Johns Grandchildren
Johns Great-grandchild
102
Family Situation

• Married person

103
Wife Has Priority
(5 more, no will)
Mother
Father
Wife receives life estate
Husband
104
Husband has priority
(5 more, no will)
Father
Mother
Husband receives life estate
Wife
105
Survivors
(5 or more, no will)
Wife
Husband
Their Child
Their Child
Their Child
106
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 Lame Deer
• .0260416667 2.6 Ft Hall

(5 or more, no will)
107
Wife Life Estate
Wife Life Estate
Husband
Remainder Interest
Their Child
Their Child
Their Child
(5 or more, no will)
108
Life estate income

• Spouse receives
• Lease
• Royalties
• Mineral income
• Rent

109
Passing of Spouse

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

110
Trust Property (5 or more, no will)
Wife Life Estate IRA tribe
Husband
Remainder Interest
Their Child
Their Child
Their Child
111
Remainder Interests
(5 more, no will)
Grandchildren
112
American Indian Probate Reform Act (AIPRA) IIM
Accounts
113
Your (IIM) Account
What happens to your money if you pass away
without a will?

• Fact Sheet 13

114
IIM Accounts

• Money earned from
• Leases
• Timber/Land Sales
• Grazing
• Mineral Royalty Payments

115
Do I have an IIM account?

• Office of the Special Trustee (OST) on each
  reservation
• Ledger Report

116
OST Phone Numbers

• Blackfeet 406-338-7518
• Fort Peck 406-768-3288
• Fort Belknap 406-353-2281
• Fort Hall 208-238-2310

117
How to get my IIM Ledger?

• Toll Free
• 1-888-678-6836
• Enrollment Number
• Last 4 numbers of SS
• Date of Birth
• Mailing Address

118
Trust Status

• Indian spouse Eligible Heirs
• retain trust status of money in account

119
Non-Indians

• Secretary of Interior distributes IIM monies to
  them

120
IIM Distribution
(no will)

• Depends on Family Situation
• Single
• Married

121
Survivors Parents
Father 1/2
Mother 1/2
Single Person
122
IIM 5,000
Dad 2,500
Mother 2,500
Single Person
123
IIM equally to brothers sisters
Father
Mother
Single person passed away after Father
Mother
1/3
1/3
1/3
124
IIM Account 3,000
Father
Mother
Single person passed away after Father
Mother
1,000
1,000
1,000
125
2 living, 2 deceased
Sisters passed away before brother
(no will)
126
IIM Distribution
127
IIM Distribution
128
Survivors 3 kids
129
IIM passes in equal shares
(no will)
130
Equal shares to children
(no will)
Grandchildren
131
Person passed away before parent
IIM Distribution
(no will)
Grandchildren
132
IIM Children Grandchild inherit
Child passed away before parent
(no will)
0
Grandchildren
133
Two children passed away before parent
IIM Distribution
(no will)
Grandchildren
134
IIM Distribution
Child passed away before parent
Child passed away before parent
Grandchildren
135
Survivors Grandchildren
All kids passed away before parent
(no will)
Grandchildren
136
Family Situation

• Married person

137
IIM Account
Wife All
Husband
138
2,000 IIM
Wife 2,000
Husband
139
IIM Account
Husband
Wife
Their Child
Their Child
Their Child
140
IIM Account-no will

• Surviving Spouse
• 1/3

141
IIM Account-no will

• Children split remaining
• 2/3

142
IIM Accounts
Wife 1/3
Husband
Equally divide 2/3
Their Child 2/9
Their Child 2/9
Their Child 2/9
143
IIM 9,000
Wife 1/3 3,000
Husband
Equally divide 2/3 6,000
Their Child 2,000
Their Child 2,000
Their Child 2,000
144
Wife 1/3 3,000
Husband 9,000
Equally divide 2/3 6,000
Their Child 2,000
Their Child 2,000
Their Child 2,000
Grand Child 1,000
Grand Child 1,000
Grand Child 0
145
IIM 9,000
Wife 1/3 3,000
Husband
Equally divide 2/3 6,000
Their Child 6,000
146
Summary

• Surviving Spouse
• All if no children

147
Summary

• Surviving Spouse
• 1/3
• Children
• 2/3

148
Writing a Will

• Fact Sheet 9

149
Written Will

• Pass undivided interests in trust lands and IIM
  money to whomever you choose

150
At what age can I write a will?

• Age 18 older

151
Does a will have to be written?

• YES!!!
• Includes
• Typed
• Computer
• Handwritten

152
Does my will have to be witnessed?

• Federal law--YES
• Two witnesses
• Neither should be a beneficiary in the will

153
HOLOGRAPHIC WILL

• Signature provisions in handwriting of the will
  maker
• 2 witnesses

154
BIA Policy

• Agency staff does not
• write wills
• store wills

155
AIPRA

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

156
AIPRA presumption

• Heirs Inherit
• Joint tenancy with right of survivorship

157
JOINT TENANCY

• On passing of one
• survivors take all

158
AIPRA assumes joint tenancy
159
Later one child passes away
160
Second child passes away
161
Where to keep your will?

• Safe Place
• Montana
• Clerk of the District Court

162
Changing will

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

163
Review Will

• Marriage
• Remarriage
• Divorce
• Birth of child
• Adoption of child
• Passing of heir

164
Review Will (contd)

• Move to another reservation
• Acquire additional property

165
Adopted Child

• Tribal Adoption Laws
• treated as will makers child, not biological
  parents child

166
Pretermitted Child (omitted)

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

167
Divorce

• Under AIPRA
• Former spouse does not receive property
  mentioned in will

168
Separation

• AIPRA
• Separation is not equivalent to divorce
• Still married if separated

169
Self Proved Will

• Affidavit
• Will maker witnesses sign acknowledge they
  were witnessing the signing of will before notary

170
Self Proved Will

• Notary
• Also signs dates the will
• Use his/her official seal on the will

171
Residuary Clause

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

172
Summary

• To Whom
• Residuary clause
• Date will makers signature
• Signatures of 2 witnesses

173
American Indian Probate Reform Act of
2004(AIPRA)