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Writing a will--Article 9
This article about wills is the ninth of 13 articles that explain major sections of the
American Indian Probate Reform Act (AIPRA).
A will is a written instrument (legal document) that describes how a person wants his or
her in land and other assets distributed after passing. If a person passes away without writing a
will, AIPRA controls who receives trust property such as IIM accounts and trust land. However,
any non-trust property that owned is distributed under state law if a person passes away without
writing a will.
A person's will has no effect during his or her lifetime. Only upon passing does a written
will go into effect. A person can change his or her will at any time while alive.
Fractionation has become problem on many reservations and may exist in allotments on
the reservation. Many families have experienced "difficulties" because multiple co-owners
couldn’t agree about the terms of a lease or about the use of land that has been inherited from
relatives. One way to avoid further fractionation of trust land upon passing is to write a will.
With a will a person can decide who is to receive their property, how much each of those named
will receive, and when they will own it.
An Indian will is a written instrument that passes trust land or an IIM account to those
named. Like any other will, an Indian will is not submitted for probate (proving before a court)
until the writer passes away. An Indian will for trust property is probated through an administrative
probate hearing before an adjudicator from the Department of Interior.
A person who is age 18 or over and has any right, title, or interest in trust land, may leave
undivided interests in trust lands and an IIM account (if one exists) to others with an Indian will.
A will must be in writing. Verbal or video taped wills are not legally recognized by
federal law. While a person can write his or her own will by handwriting it, legal counsel is
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advised. Attorneys on and off reservations can prepare written wills, but they must be familiar
with the special rules that apply to trust or restricted land and IIM accounts.
A will in a person's own handwriting must be witnessed by two disinterested parties who
are not named in the written will. A person's will should be signed and dated. Federal law
requires that two adults witness the signing of the person's will. A disinterested witness must be
an adult who is at least 18 years old and competent.
If a person types a will or uses a computer software program to write a will, two
disinterested witnesses must also sign it after a person has dated and signed the will.
A person should keep the original written will in a safe deposit box at a local bank. The
Bureau of Indian Affairs does not accept wills for safe keeping.
A person can change a will during his or her lifetime. If a person wants to make changes
to his or her original will, it can be revoked and a new one made. Or, a person could write a
codicil (a supplement to the original will). A codicil should also be signed, dated, and witnessed.
Marking out words or adding words to an existing will is not acceptable. Such actions
may cause your will to be invalidated during the administrative hearing in which your will is
probated.
A divorced spouse is not considered as the surviving spouse of the person who wrote a
will. Under AIPRA, a divorce or marriage dissolution revokes all gifts of property in a will to
the former spouse. Any property left in a will to the former spouse passes as if the former spouse
had passed away before the person who wrote the will.
As an example, Mary wrote a will leaving her undivided interest in an allotment to her
husband. They were later divorced. Mary passed away before changing her will. The gift of
land in her will to her former husband was revoked by the divorce. Instead, the land passed to
her two children.
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A separation or legal separation is not equivalent to a divorce. Until there is a legal
decree of divorce or marriage dissolution, a husband and wife who say they are separated or who
are legally separated remain legally married. If a separated husband or wife passes away, the
surviving spouse receives gifts made in the will.
This was the ninth of 13 articles explaining sections of AIPRA. Further information
on AIPRA is included in a packet of 14 Fact Sheets that is available without charge from
(name and address of agent). Materials in these fact sheets were developed by the Montana
State University faculty, with funding from the Community Outreach and Assistance
Partnership Program of the Risk Management Agency of USDA. Next week's article will
explain purchase options at probate.
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