American
Indian Probate
Reform Act
of 2004
(AIPRA)
1
Floyd H. Azure II
Montana State University
Extension Undergraduate
Student Assistant
Marsha A. Goetting
Montana State University
Extension Family Economics
Specialist;
Department of Agricultural
Economics & Economics
2
Purpose
of AIPRA
• To Prevent Further
Fractionation of Trust
Lands.
• To Encourage
Consolidation of Indian
Land Ownership.
3
AIPRA: Probate
Sections
•Effective for
persons who pass
away on or after
June 20, 2006
4
AIPRA
• State law no
longer applies to
Trust Property
when a person
passes away
without a will.
5
14 Fact Sheets
• Highlight
• Describe
• Illustrate
6
Fact Sheet #1
• What Is AIPRA
& How Does It
Affect You
 Summary of
each of the 14
fact sheets.
7
Fact Sheet #2
•
Fractionation:
Inherited Undivided
Interests
8
Description:
Brief history
• What is Fractionation?
• How does
Fractionation affect
us?
•
9
Definition
• Fractionation
 An increasing number
of owners for a land
parcel with each
passing generation
10
Brief History of
Fractionation
• General Allotment Act of
1887
 Allotted land to individual
Indians.
 Established concept of “the
individual” in traditional
Native American life
(“My land”).
11
Fractionation
6
generation
family
12
1st Generation
Original
Allottee
13
2nd Generation
Original
Allottee
1/3
1/3
1/3
14
3rd Generation
Original
Allottee
1/3
1/3
1/9
1/9
1/3
1/9
15
4th Generation
Original
Allottee
1/3
1/3
1/3
1/9
1/36
1/9
1/9
1/36 1/36 1/36
16
5th Generation
Original
Allottee
1/3
1/3
1/3
1/9
1/36
1/9
1/9
1/36 1/36 1/36
1/144 1/144 1/144 1/144
17
6th Generation
Original
Allottee
1/3
1/3
1/3
1/9
1/36
1/9
1/9
1/36 1/36 1/36
1/144 1/144 1/144 1/144
?
?
?
18
6th Generation
Original
Allottee
1/3
1/3
1/9
1/9
1/36
1/36
1/3
1/9
1/36
1/36
1/144 1/144 1/144 1/144
1/432 1/432
1/432
19
Fractionation by
$$$$
• Example
 Lease Dollar Amounts
20
1st Generation
$1,002
Annual Income
21
2nd Generation
$1,002
Annual Income
$334
$334
$334
22
3th Generation
$1,002
Annual Income
$334
$111.33
$334
$111.33
$334
$111.33
23
4th Generation
$1,002
Annual Income
$334
$111.33
$27.83
$334
$111.33
$27.83
$334
$111.33
$27.83
$27.83
24
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
25
6th Generation
$1,002
Annual Income
$334
$334
$111.33
$111.33
$27.83
$6.96
$27.83
$6.96
$111.33
$27.83
$6.96
$2.32
$334
$27.83
$6.96
$2.32
$2.3226
As of 2006, the average
trust allotment has…..
17.4 owners.
27
Or Even Worse….
• Some shares are as small as
1
9,000,000 of a parcel.
• That’s equivalent to 1.74 square feet!
28
Summary:
• Fractionation:
 Increasing number of
owners with each passing
generation
 Each owner has an
undivided interest in the
entire parcel
29
More Information
•Fact Sheet #2
Fractionation:
Inherited Undivided
Interest
30
Fact Sheet #3
How is Reservation
Land Owned by
individuals?
•Trust Status?
•Fee Status?
31
AIPRA
Regulates:
•Trust Property
Unless the tribe
has a probate
code
32
Trust Property
• Trust Lands
Throughout the United
States (except Alaska)
• IIM Accounts
(Individual Indian
Money = IIM)
33
Fee Status
• Land passes
according
to law of state
where land is
located.
34
Montana
• For fee land on our
reservations:
Montana law
applies if you pass
away without a will.
35
Personal Property
• AIPRA does not affect:
 Checking Accounts
 Saving Accounts
 Vehicles
• State of residence or
tribal probate laws
apply
36
Fort Peck Probate
Code
• Regulates titled
personal property
such as:
 Checking Accounts
 Saving Accounts
 Vehicles
37
More Information
•Fact Sheet #3
How is reservation
land owned by
individuals
38
Who is able to
receive the land in
trust status?
• Eligible heirs
• Interests owned
39
Fact Sheet #5
•Who is Eligible to
Inherit Your Trust
Land & Retain
Trust Status?
40
AIPRA Requirement
• Interests must pass
to:
 Eligible heirs to retain
trust status.
• Who are eligible
heirs?
41
Eligible heirs
(Defined under AIPRA)
•
•
•
•
•
Children
Grandchildren
Great grandchildren
Brothers & sisters
Half brothers &
sisters by blood
• Parents, AND…
42
Eligible heirs must
also be:
• “Indian ”; or
• Lineal descendants
within 2 degrees of
blood relationship of an
“Indian”.
43
Degrees of Relationship Chart
Permission from: Attorney General of Texas, Greg Abbott
44
Who is an “Indian”?
• AIPRA defines “Indian” 5
ways
• An individual only has
to meet 1 definition.
45
“Indian” - AIPRA
1. Member of a
federally
recognized
Indian tribe.
46
“Indian” - AIPRA
2. Eligible to
become member
of a federally
recognized
Indian tribe.
47
“Indian” - AIPRA
3. Owner of trust
or restricted
land on or
before October
27, 2004.
48
“Indian” - AIPRA
4. Meets the
definition of Indian
under the Indian
Reorganization Act
of 1934 (IRA).
49
“IRA definition”
• Is enrolled in an IRA Tribe
• Is an aggregate of ½ Indian
blood
• Is a descendent of an IRA
tribal member who was
living on a reservation in
1934
50
“Indian” -AIPRA
5. Person of Indian
ancestry who owns
trust or restricted
land in California.
51
Summary:
• Fact Sheet #5 describes
Eligible heirs :
Who can inherit
trust lands &
retain trust
status
52
Who is able to
receive the land in
trust status?
• Eligible heirs
• Interests owned
53
AIPRA distribution among
eligible heirs:
• Depends on percentage
of undivided interest
owned by the person
who passed away
54
Do you own:
5% or more?
Less than 5%?
55
Fact Sheet #4
•Your Individual
Trust Interest
(ITI) Report:
How to read it
56
Where do I get my
ITI Report?
•Local BIA Office
Realty Department
Fort Peck
406-768-5112
57
Where do I get my
ITI Report?
• BIA Regional Office
Rocky Mountain Region
Billings 406-247-7943
58
Important fact on
ITI Report:
• Amount of
undivided
interest owned
in each parcel.
59
ITI Report
AGGREGATE DECIMAL
• Right side,
lower middle
• Decimal C
– .0173611111
60
Because AIPRA uses
percent
Convert C
Decimal to %
•.0173611111
=1.7%
61
Example: ITI Report
•
•
•
•
•
•
.0173661111 = 1.7%
.156250000 = 15.6%
.0078125000 = 0.8%
.114583333 = 11.5%
.0078125000 = 0.8%
.0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
62
Use ITI Report to
determine % of
ownership
•5% or more?
•Less than 5%?
63
Fact Sheet #7
 If your undivided interest
in each allotment is:
less than 5%
 What Happens If You Pass
Away Without Writing a
Will?
64
Single Heir Rule
• Undivided interest of
less than 5%
passes to one person
in following order…..
65
Single Heir Rule
(less than 5% & no will)
• First priority:
 Oldest
surviving
eligible child
66
Single Heir Rule
(less than 5% & no will)
• If no surviving
eligible child
 Oldest surviving
eligible grandchild
67
Single Heir Rule
(less than 5% & no will)
• If no surviving eligible
grandchild
Oldest surviving
eligible greatgrandchild
68
Single Heir Rule
(less than 5% & no will)
• If no surviving eligible
child, grandchild or
great-grandchild
Tribe
69
Single Heir Rule
(less than 5% & no will)
• If tribe does not have
jurisdiction
 Equal shares to
Co-owners
70
Single person-•Never married
•Widowed
•Divorced
•Common Law
(less than 5% & no will)
71
Example 1:
• Person has no
written will
 No Spouse
 No Children
 No Grandchildren
 No Great
Grandchildren
72
ITI Report
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
73
Single Heir Rule
(no will)
• Undivided interest of less
than 5% passes to:
Tribe with
jurisdiction
74
Tribe Inherits
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
75
Example 2: Single,
no spouse
•Has living
Children
(less than 5% & no will)
76
Children defined
(AIPRA)
•Biological
•Legally
adopted
77
Example 2: Dad passes
Survivors: 2 kids
DAD
Child
Age 19
Child
Age 29
(less than 5% & no will)
78
Dad’s ITI Report
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
79
Single Heir Rule
•All interests
pass to oldest
surviving
eligible child
(less than 5% & no will)
80
Which child receives?
DAD
(less than 5% &
no will)
Child
Age 19
Child
Age 29
81
Oldest Child – Age 29
.017366111 = 1.7%
.015625000 = 1.6%
.007812500 = 0.8%
.011458333 = 1.1%
.007812500 = 0.8%
.026041666 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing
Ft Hall
(Receives <5% interest on
each reservation)
82
Married--AIPRA
• Includes
 Separated
 Legal
separation
83
Example 3: Married
(less than 5% & no will)
• Husband passes
away
• Survivor:
•Wife
 not living on a parcel
 No Children
84
Husband’s ITI Report
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
85
Single Heir Rule
(less than 5% & no will)
•There is no
surviving eligible:
 child or
 grandchild or
 great-grandchild
86
Example 3: Wife not on
parcel
• All interests
pass to Tribe.
•Spouse receives
nothing.
(less than 5% & no will)
87
Passes to Tribe where
interest is located
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
88
Example 4: (less than 5%
•Survivors:
& no will)
Husband
Not living on the parcel
 3 Children
89
Example 4:
Ages of Children
Wife
(less than 5%
& no will)
Husband
Child
Child
Child
Age 18 Age 22 Age 24
90
Mom’s ITI Report
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
91
Single Heir Rule (no will)
•Interests of less
than 5%
pass to oldest
surviving
eligible child
92
Survivors: Husband & Children
(less than 5% & no will)
Husband
Wife
0
Child
Age 18
Child
Age 22
0
0
Child
Age 24
All
93
24 year old receives all
 .0173661111 = 1.7%
 .0156250000 = 1.6%
 .0078125000 = 0.8%
 .0114583333 = 1.1%
 .0078125000 = 0.8%
 .0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(Each is less than 5%)
94
Family Example 5
•Survivors
Wife
•living on one of
the parcels
3 Children
(less than 5% & no will)
95
Spouse lives
on parcel
.017366111 = 1.7%
.015625000 = 1.6%
.007812500 = 0.8%
.011458333 = 1.1%
.007812500 = 0.8%
.026041666 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing
Ft Hall
(less than 5% & no will)
96
Children & Spouse
Husband
Child
Age 18
Spouse
Lives on
Fort Peck
parcel
Child
Child
Age 22 Age 24
97
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)
98
Life Estate
• Allows life tenant
to have possession
of property during
his/her lifetime
–But not ownership
of property
(less than 5% & no will)
99
Single Heir Rule: No will
• Oldest child receives:
 Remainder interest
 home
 land
Receives parcels with
interests of less than
5%.
100
Remainderman
•Person entitled
to property after
the life tenant
has passed away
101
Oldest Child
Spouse – life estate
 .017366111 = 1.7% Ft Peck
.015625000 = 1.6% Ft Belknap
.007812500 = 0.8% Blackfeet
.011458333 = 1.1% Ft Peck
.007812500 = 0.8% Standing
.026041666 = 2.6% Ft Hall
(less than 5% & no will)
102
Trust Land
(less than 5%& no will)
Husband
Child
Age 18
0
Wife
Life Estate
Child
Age 22
0
Child
Age 24
parcels
with less
than 5%
103
Spouse passes away
(less than 5% & no will)
Wife
Husband
Child
0
Child
0
Oldest
Child
Age 24
104
Upon Mother’s passing
oldest child receives:
• Remainder interest
–1.7% parcel Fort Peck
• Includes family home
105
Oldest Child Receives
remainder interest
.017366111 = 1.7%
.015625000 = 1.6%
.007812500 = 0.8%
.011458333 = 1.1%
.007812500 = 0.8%
.026041666 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing
Ft Hall
(less than 5% & no will)
106
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.
107
More information:
•Fact Sheet #7
Your Undivided
Interest of less than
5%:
What Happens If You
Pass Away Without a
Written Will ?
108
Fact Sheet #6
•Your Undivided
Interest:
5% or more
•What Happens If
You Pass Away
Without a
Written Will?
109
To find out how much
interest you own:
•
Check your
Individual Trust
Interest Report
(ITI Report)
110
Which are 5% or more??
.0173661111
.1056250000
.5078125000
.0114583333
.0878125000
.0260416667
on
on
on
on
on
on
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
111
ITI Report Ownership
.0173661111 = 1.7%
.1056250000 = 10.6%
.5078125000 = 50.8%
.0114583333 = 1.1%
.0878125000 = 8.8%
.0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(5% or more)
112
AIPRA distribution
depends on:
• Marital Status
• Descendants
113
Family Situations:
Single
 Married

(5% & more, no will)
114
Example 1:
Single Person
• No Children
• Parents are
Living
(5% or more, no will)
115
5% or more on ITI
.0173661111 = 1.7%
.1056250000 = 10.0%
.5078125000 = 50.0%
.0114583333 = 1.1%
.0878125000 = 8.0%
.0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
116
Both parents alive
Mother
Father
Single
Person
Passed Away
(5% or more, no will)
117
Parents inherit equally
Mother
1/2
Father
1/2
Single
Person
Passed Away
(5% or more, no will)
118
Example 2:
Single Person
• No children
• Mother is only
living parent
(5% or more, no will)
119
ITI Report Ownership
.0173661111 = 1.7%
.1056250000 = 10.0%
.5078125000 = 50.0%
.0114583333 = 1.1%
.0878125000 = 8.0%
.0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(5% or more, no will)
120
Mother is the Survivor
Mother
Father
Deceased
Single
Person
Passed Away
(5% or more, no will)
121
Mother receives all
Mother
ALL
Father
Deceased
Single
Person
Passed Away
(5% or more, no will)
122
Example 3:
Single Person
• No children
• Parents are
deceased
• 3 living sisters
(5% or more, no will)
123
Survivors: 3 sisters
Father
Single
person passed
away after
Father & Mother
Mother
Sis Sis Sis
(5% or more, no will)
124
Single Person
(5% or more, no will)
If parents are deceased,
undivided interest
passes equally to:
• Brothers & Sisters
125
Equal Amounts to Sisters
Father
Single
person passed
away after
Father & Mother
Mother
1/3 1/3 1/3
(5% or more, no will)
126
Example 4:
Single Person
• No children
• Parents are deceased
• 2 sisters are deceased
• 2 brothers are living
(5% or more, no will)
127
Two Brothers Survive
Sisters passed
away before brother
Brother Sister
Sister
Brother
Brother
Niece Nephew Nephew Nephew Nephew Nephew
(5% or more & no will)
128
Equally to Living Brothers
Bachelor Sister
Brother
Sister
Brother
Brother
1/2
1/2
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
(5% or more & no will)
0
129
Example 5:
Single Person
• No children
• Parents are deceased
• 2 sisters & 1 brother are
deceased
• 1 brother is living
(5% or more, no will)
130
Living brother receives all
Bachelor Sister
Brother
Sister
Brother
1/2
Brother
ALL
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
(5% or more & no will)
0
131
Example 6:
Single Person
• No children
• Parents are deceased
• All sisters & brothers
deceased
(5% or more, no will)
132
Nieces & Nephews
Do NOT Inherit
Bachelor Sister
Brother
Sister
Brother
Brother
1/2
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
(5% or more no will)
0
0
133
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)
134
Example 7:
• Single
 With Children
(5% & more, no will)
135
Survivors : 3 children
Child
Single
Parent
Passed
Away
(5% & more,
no will)
Child
Child
136
ITI Report Ownership
.0173661111 = 1.7%
.1056250000 = 10.0%
.5078125000 = 50.0%
.0114583333 = 1.1%
.0878125000 = 8.0%
.0260416667 = 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(5% or more, no will)
137
Children Share Equally
(5% & more, no will)
Parent
Passed
Away
1/3
1/3
1/3
138
Example 8:
(5% & more, no will)
• Single person:
 3 living children
 6 living grandchildren
139
Children Share Equally
Parent
1/3
0
(5% & more,
no will)
1/3
0
0
1/3
0
Grandchildren
0
0
140
Example 9:
(5% or more, no will)
•What if ?
•1 deceased child with
a child
•2 living children with
children
141
Child
passed
away
before
parent
o
What does grandchild
receive, if any?
Parent
(5% & more, no
will)
?
?
? ? ? ? ? ?
Grandchildren
142
Legal Term
• Grandchildren
inherit by:
Right of
Representation
(5% & more, no will)
143
Right of Representation
• Grandchildren receive
the share their parent
would have received if
he/she had lived.
144
Child
passed
away
before
parent
o
1/3
Grandchild inherits by
right of representation
(5% & more,
no will)
Parent
1/3
0
0
1/3
0
Grandchildren
0
0
145
Example 10:
• What if ?
 a deceased son with 1
child
 a deceased daughter
with 2 children
(5% or more, no will)
146
Survivors: Child &
Grandchildren
Two
children
passed
away
before
parent
o
Parent
(5% & more,
no will)
?
o
? ? ? ? ? ?
Grandchildren
147
Right of Representation
• Grandchildren
receive the share
their parent would
have received if
he/she had lived.
(5% & more, no will)
148
Survivors: Child &
Grandchildren
Two
children
passed
away
before
parent
1/3
(5% & more,
no will)
Parent
1/3
o
1/3 1/6 1/6
0
Grandchildren
0
0
149
Example 11:
•What if?
 a deceased son with 1
child
 a deceased daughter
with 3 children
(5% or more, no will)
150
Survivors: Child &
Grandchildren
Parent
Passes
Away
(5% & more,
no will)
?
? ? ? ? ? ?
o
o
Grandchildren
151
Right of Representation
• Grandchildren
receive the share
their parent would
have received if
he/she had lived.
(5% & more, no will)
152
Survivors: Child &
Grandchildren
(5% & more,
no will)
o
1/3
Parent
Passes
Away
1/3
0
0
o
1/9 1/9 1/9
Grandchildren
153
Example 12:
• What if?
• All children pass away
before parents &
grandchildren are
living?
(5% or more, no will)
154
Survivors:
Grandchildren
(5% & more,
no will)
o
Parent
Passes
Away
o
All
children
passed
away
before
parent
o
1/3 1/6 1/6 1/9 1/9 1/9
Grandchildren
155
Example 13:
• What if?
• survivors are children,
grandchildren & great
grandchildren?
(5% or more, no will)
156
Child
passed
away
before
parent
John
1/2
Daughter
Grandchild
0
John’s
Great-grandchild
Child
passed
away
before
parent
0
Son
0
1/6 1/6 1/6
John’s
Grandchildren
Family Situation
•Married
person
158
Example 1:
Married
(5% or more, no will)
• No children
• Parents are alive
159
ITI Report Ownership
•
•
•
•
•
•
.0173661111
.1056250000
.5078125000
.0114583333
.0878125000
.0260416667
= 1.7%
= 10.0%
= 50.0%
= 1.1%
= 8.0%
= 2.6%
Ft Peck
Ft Belknap
Blackfeet
Ft Peck
Standing R
Ft Hall
(5% or more, no will)
160
Wife Has Priority
(5% & more, no will)
Father
Husband
Mother
Wife
receives
life estate
161
Husband has priority
(5% & more, no will)
Father
Mother
Husband
receives
life estate
Wife
162
Example 2: Married
• Husband passes
away
 Wife living
 3 living children
(5% or more, no will)
163
Survivors
(5% or more, no will)
Wife
Husband
Their
Child
Their
Child
Their
Child
164
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)
165
Wife – Life Estate
Wife
Life Estate
Husband
Remainder Interest
Their
Child
Their
Child
Their
Child
(5% or more, no will)
166
Married – no will
5% or more interest
•
Trust property
passes to surviving
spouse as a life
estate without
regard to waste.
167
Legal Term
• Without regard to
waste:
 Life tenant can do
anything to land while
the he or she is alive.
168
Life Estate for
Surviving Spouse
• Any income from
trust lands during
his/her lifetime
169
Life estate income
• Spouse receives




Lease
Royalties
Mineral income
Rent
170
Passing of Spouse
• Property held in life
estate passes to the
remaindermen
Children
171
Trust Property
(5% or more, no will)
Husband
Wife
Life Estate
IRA tribe
Remainder Interest
Their
Child
Their
Child
Their
Child
172
Remainderman - children
Aggregate Decimal
.1073661111
.0056250000
.5000000000
.2324583333
.1478125000
.0090416667
Percent
= 10.7 %
= 0.6%
= 50.0 %
= 23.2 %
= 14.7 %
= 0.9 %
173
Remainder Interests
Parent
1/3
0
(5% & more,
no will)
1/3
0
0
1/3
0
Grandchildren
0
0
174
Legal Term
(5% & more, no will)
•Grandchildren
inherit remainder
interests by
Right of
Representation
175
Child
passed
away
before
parent
Remainder Interests
(5% & more, no will)
Parent
1/3
o
1/3
0
1/3
0
0
Grandchildren
0
0
176
Two
children
passed
away
before
parent
Remainder Interests
(5% & more, no will)
Parent
1/3
1/3
1/3 1/6 1/6 0
0
1/3
Grandchildren
0
177
Remainder Interests
(5% & more, no will)
Parent
Passes
Away
a
1/3
1/3 0
a
0 1/9 1/9 1/9
Grandchildren
178
Summary
• Retaining & receiving
trust land depends
on:
 Eligible heirs
 % interest owned
 Family situation
 Whether a will is written
179
American Indian
Probate Reform
Act (AIPRA)
IIM
Accounts
180
Your (IIM) Account
What happens to
your money if you
pass away without
a will?
• Fact Sheet #13
181
IIM Accounts
• Money
earned from
 Leases
 Timber/Land Sales
 Grazing
 Mineral Royalty Payments
182
Do I have an IIM
account?
•Office of the
Special Trustee
(OST) on each
reservation
•Ledger Report
183
OST Phone Numbers
Blackfeet: 406-338-7518
Fort Peck: 406-768-3288
Fort Belknap: 406-353-2281
Fort Hall: 208-238-2310
184
How to get my IIM
Ledger?
•Toll Free
1-888-678-6836
•Enrollment Number
•Last 4 numbers of SS#
•Date of Birth
•Mailing Address
185
Trust Status
•Indian spouse &
Eligible Heirs
– retain trust status
of money in
account
186
Non-Indians
•Secretary of
Interior
distributes
IIM monies to
them
187
IIM
(no will)
Distribution
•Depends on
Family Situation
– Single
– Married
188
Example 1: Single
• No spouse
• No children
• No grandchildren
• No great grandchildren
–Parents are
living
189
Survivors: Parents
Mother
Father
1/2
1/2
Single
Person
190
IIM: $5,000
Mother
$2,500
Dad
$2,500
Single
Person
191
Survivor: One Parent
Mother
ALL
Father
Single
Person
192
Survivor: One parent
Mother
$5,000
Father
Single
Person
193
Example 2:
• If no spouse, no children,
no grandchildren, no
great grandchildren or no
parents
–Brothers &
sisters split
IIM money
194
IIM equally to
brothers & sisters
Father
Single
person passed
away after
Father & Mother
Mother
1/3 1/3 1/3
195
IIM Account: $3,000
Father
Single
person passed
away after
Father & Mother
Mother
$1,000 $1,000 $1,000
196
Example 3: (no will)
Single Person
• No children
• Parents deceased
• Brothers & sisters
• Deceased & living
197
2 living, 2 deceased
Sisters passed
away before brother
Brother Sister
Sister
(no will)
Brother
Brother
Niece Nephew Nephew Nephew Nephew Nephew
198
IIM Distribution
Bachelor Sister
Brother
Sister
Brother
Brother
1/2
1/2
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
0
199
IIM Distribution
Bachelor Sister
Brother
Sister
Brother
Brother
o
All
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
0
200
Example 4:
(no will)
•Single
– with
children
201
Survivors : 3 kids
Single
Parent
Passed
Away
Child
Child
Child
202
IIM passes in equal
shares (no will)
Parent
Passed
Away
1/3 1/3 1/3
203
Example 5:
(no will)
•Single person
– 3 living children
– 6 living
grandchildren
204
Equal shares to children
Parent
1/3
0
(no will)
1/3
0
0
1/3
0
Grandchildren
0
0
205
Example 6: IIM
• What if ?
•a person (with
1 child) passes
away before
parents?
(no will)
206
Person
passed
away
before
parent
Parent
IIM
Distribution
(no will)
?
?
?
?
?
Grandchildren
0
?
?
?
/ ? //
207
Right of
Representation
• Grandchildren
receive the IIM
share their parent
would have received
if he/she had lived
(no will)
208
Child
passed
away
before
parent
IIM: Children &
Grandchild inherit
(no will)
Parent
1/3
1/3
0
1/3
0
0
Grandchildren
0
0
209
Example 7:
• What if ?
• A son with 1 child
• A daughter with 2
children passed
away before
parent?
(no will)
210
Two
children
passed
away
before
parent
1/3
IIM Distribution
Parent
1/3
(no will)
1/3
1/3 1/6 1/6 0 0 0
Grandchildren
211
Example 8:
• What if ?
• A son with 1 child
• A daughter with 3
children passed
away before
parent?
(no will)
212
IIM Distribution
Child
passed
away
before
parent
Parent
Passes
Away
1/3
o
1/3
Child
passed
away
before
parent
0
o
0
1/9 1/9 1/9
Grandchildren
213
Example 9:
• What if ?
• All children pass
away before parents
• There are 6 living
grandchildren
214
Survivors :
Grandchildren
(no will)
o
Parent
Passes
Away
o
All kids
passed
away
before
parent
1/3
1/3 1/6 1/6 1/9 1/9 1/9
Grandchildren
215
Summary
(no
will)
•IIM Account
Distribution
– depends upon
family situation for
a single person
216
Family Situation
• Married
person
217
Example 1:
(no will)
Married
•Survivors
–Wife
–No
children
218
IIM Account
Husband
Wife
All
219
$2,000 IIM
Husband
Wife
$2,000
220
Example 2: Married
•Survivors
(no
will)
–Wife
–3
Children
221
IIM Account
Husband
Their
Child
Wife
Their
Child
Their
Child
222
IIM Account-no
will
•Surviving
Spouse
•1/3
223
IIM Account-no
will
• Children split
remaining
•2/3
224
IIM Accounts
Wife
1/3
Husband
Equally divide 2/3
Their
Child
2/9
Their
Child
2/9
Their
Child
2/9
225
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
226
Example 3: Married
•Survivors
–Wife
–2 living children
–1 deceased child
with children
227
Wife
1/3
$3,000
Husband
$9,000
Equally divide 2/3 = $6,000
Their
Child
$2,000
Grand
Child
$1,000
Grand
Child
$1,000
Their
Child
$2,000
Their
Child
$2,000
Grand
Child
0
228
Summary
•Surviving
Spouse
–All if no
children
229
Summary
•Surviving
Spouse
–1/3
•Children
–2/3
230
More Information
What happens
to your IIM
money if you
pass away
without a will?
•Fact Sheet #13
231
Writing a Will
•Fact
Sheet
#9
232
Written Will
• Pass undivided
interests in trust
lands and IIM
money to
whomever you
choose
233
At what age can
I write a will?
• Age 18
& older
234
Does a will have
to be written?
•YES!!!
– Includes
•Typed
• Computer
• Handwritten
235
Does my will have
to be witnessed?
• Federal law--YES
• Two witnesses
– Neither “should”
be a beneficiary in
the will
236
HOLOGRAPHIC
WILL
 Signature &
provisions in
handwriting of
the will maker
 2 witnesses
237
BIA Policy
•
Agency staff
does not
•write wills
•store wills
238
AIPRA
•Special Rule
–if undivided
interests are left
to more than 1
person in a
written will
239
AIPRA presumption
•Heirs Inherit
–Joint tenancy
with right of
survivorship
240
JOINT TENANCY
•
On passing
of one
–survivors
take all
241
Example 1:
•Mary wills
her land to
her 3
children
equally
242
AIPRA assumes joint
tenancy
Parent
Passed
Away
JT
JT
JT
243
Later one child passes
away
Parent
Passed
Away
JT
JT
JT
244
Second child passes
away
Parent
Passed
Away
JT
JT
Solely
owned
245
Where to keep
your will?
• Safe Place
– Montana
•Clerk of the
District Court
246
Changing will
•
Can be
changed
during lifetime
as long as you
are competent
247
Review Will
• Marriage
• Remarriage
• Divorce
• Birth of child
• Adoption of child
• Passing of heir
248
Review Will (cont’d)
•Move to
another
reservation
•Acquire
additional
property
249
Adopted Child
•
Tribal Adoption
Laws
– treated as will
maker’s child, not
biological parents’
child
250
Pretermitted
Child (omitted)
• If not mentioned in
will
• May be able to inherit
same share that he/she
would have received
without a will
251
Divorce
• Under AIPRA
– Former spouse
does not receive
property
mentioned in will
252
Separation
•AIPRA
–Separation is not
equivalent to
divorce
–Still married if
separated
253
Self Proved Will
• Affidavit
–Will maker &
witnesses sign &
acknowledge they
were witnessing the
signing of will before
notary
254
Self Proved Will
•Notary
–Also signs &
dates the will
–Use his/her
official seal on
the will
255
Residuary Clause
• Last clause
– Person to receive
any part that may
be left after rest of
will clauses are
carried out
256
Summary
• To Whom
• Residuary clause
• Date & will
maker’s signature
• Signatures of 2
witnesses
257
More Information
Writing
a Will
•Fact Sheet #9
258
Floyd H. Azure II
Montana State University
Extension Undergraduate Student
Assistant
Marsha A. Goetting
Montana State University
Extension Family Economics
Specialist;
Department of Agricultural
Economics & Economics
259
American
Indian Probate
Reform Act
of 2004
(AIPRA)
260