If your loved one lived on U.S. trust property or had an Individual Indian Money (IIM) account, their estate is not subject to state probate laws. Instead, probate is managed by the Bureau of Indian Affairs (BIA) under the American Indian Probate Reform Act (AIPRA) of 2004. As such, probating your loved one’s estate requires a unique level of experience and understanding of tribal law.
We at Circling Eagle Law serve clients who must probate a loved one’s estate according to tribal law. Whether you are unfamiliar with this type of probate, or probate all together, rest assured that our attorneys can provide all of the guidance you’ll need to settle your loved one’s estate. We’ll walk you through each step of the process, making sure that you understand your options along the way.
For more information, call our tribal probate lawyers in Fargo at (701) 401-7404.
When someone dies with Indian trust assets in their estate, probate for this property is handled by the Bureau of Indian Affairs (BIA).
The BIA only probates Indian trust assets, which include the following:
Starting the tribal probate process begins with contacting the BIA office nearest to where the deceased lived and informing the office of the death. There is no deadline to inform the BIA of the death, and the individual who does so doesn’t need to be a family member.
From here, the BIA will request a certified copy of the death certificate or an affidavit of death in lieu of the former. The BIA will then prepare a probate package containing a number of important documents related to the deceased’s family history, status as a Native American under the American Indian Probate Reform Act, inventory of trust or restricted property, any known wills, etc.
The probate package is then sent to the Office of Hearings and Appeals, which assigns a judge to the case. The judge distributes the deceased’s personal property according to the AIPRA and distributes trusts land as provided by the deceased’s will.
If there is no valid will found, the tribal probate code determines how the deceased’s estate is distributed. If there is neither a will nor a tribal probate code, then AIPRA determines how the entire estate is distributed.
If you would like to learn more about this process, we encourage you to reach out to one of our tribal probate attorneys in Fargo!
Yes. BIA probate is only for Indian trust assets and can’t be used to probate other property. Likewise, state courts are prohibited from probating Indian trust assets. This means that estates with both kinds of property may have to undergo both kinds of probate. In fact, it’s very common for Native American estates to go through both kinds of probate when an owner had Indian trust property.
Before AIPRA became law in 2004, ownership of Native American land after probate was problematic.
For more than 120 years, many Native Americans did not – or were not allowed to – write wills to pass their property down to loved ones. When their estates were probated under state intestate laws, ownership of Native American land fractured among multiple heirs. Over time, this meant that tracts of Native American land could accumulate hundreds of owners, each with an equal ownership interest in the property, but none were able to actually do anything with it.
Under AIPRA, probate for Native American property is handled according to a federal probate code, rather than the state’s. The goals for the federal probate code were to limit Native American land fractionation, ensure land passes to the Native American owner’s children, and encourage Native Americans to draft wills.
Tribal probate law is a very different process than any state’s probate process. If your loved one passed away with Indian trust assets in their estate, you may have to deal with both kinds of probate. Rest assured that our tribal probate lawyers in Fargo at Circling Eagle Law can walk you navigate this difficult time toward a brighter future.
Learn more about how we can help when you contact us online!