American
Indian Probate
Reform Act
of 2004
(AIPRA)
1
Marsha A. Goetting
Extension Family Economics
Specialist;
Department of Agricultural
Economics & Economics
Montana State University
2
AIPRA: Probate
Sections
•Effective for
persons who pass
away on or after
June 20, 2006
3
Purpose
of AIPRA
• To Prevent Further
Fractionation of Trust
Lands.
• To Encourage
Consolidation of Indian
Land Ownership.
4
AIPRA
• State law no
longer applies to
Trust Property
when a person
passes away
without a will.
5
14 Fact Sheets
• Define
• Describe
• Illustrations
6
Fact Sheet #2
•
Fractionation:
Inherited Undivided
Interests
7
Definition
• Fractionation
 An increasing number
of owners for a land
parcel with each
passing generation
8
Fractionation
6
generation
family
9
1st Generation
Original
Allottee
10
2nd Generation
Original
Allottee
1/3
1/3
1/3
11
3rd Generation
Original
Allottee
1/3
1/3
1/9
1/9
1/3
1/9
12
4th Generation
Original
Allottee
1/3
1/3
1/3
1/9
1/36
1/9
1/9
1/36 1/36 1/36
13
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
14
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
?
?
?
15
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
16
Fractionation by
$$$$
• Example
 Lease Dollar Amounts
17
1st Generation
$1,002
Annual Income
18
2nd Generation
$1,002
Annual Income
$334
$334
$334
19
3th Generation
$1,002
Annual Income
$334
$111.33
$334
$111.33
$334
$111.33
20
4th Generation
$1,002
Annual Income
$334
$111.33
$27.83
$334
$111.33
$27.83
$334
$111.33
$27.83
$27.83
21
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
22
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
$2.3223
AIPRA controls
Trust Property
• Trust Lands
Throughout the United
States
• IIM Accounts
(Individual Indian Money
= IIM)
24
Personal Property
• AIPRA does not affect:
 Checking Accounts
 Saving Accounts
 Vehicles
• State of residence or
tribal probate laws
apply
25
AIPRA distribution among
eligible heirs:
• Depends on percentage
of undivided interest
owned by the person
who passed away
26
Do you own:
5% or more?
Less than 5%?
27
Fact Sheet #4
•Your Individual
Trust Interest
(ITI) Report:
How to read it
28
Where do I get my
ITI Report?
•Local BIA Office
Realty Department
Lame Deer
29
Where do I get my
ITI Report?
• BIA Regional Office
Rocky Mountain Region
Billings 406-247-7943
30
Important fact on
ITI Report:
• Amount of
undivided
interest owned
in each parcel.
31
ITI Report
AGGREGATE DECIMAL
• Right side,
lower middle
• Decimal
– .0173611111
32
Because AIPRA uses
percent
Convert Decimal
to %
•.0173611111
=1.7%
33
Example: ITI Report
•
•
•
•
•
•
.0173661111 = 1.7%
.156250000 = 15.6%
.0078125000 = 0.8%
.114583333 = 11.5%
.0078125000 = 0.8%
.0260416667 = 2.6%
Ft Peck
Lame Deer
Blackfeet
Ft Peck
Lame Deer
Ft Hall
34
Use ITI Report to
determine % of
ownership
•5% or more?
•Less than 5%?
35
Fact Sheet #7
 If your undivided interest
in each allotment is:
less than 5%
 What Happens If You Pass
Away Without Writing a
Will?
36
Single Heir Rule
• Undivided interest of
less than 5%
passes to one person
in following order…..
37
Single Heir Rule
(less than 5% & no will)
• First priority:
 Oldest
surviving
eligible child
38
Single Heir Rule
(less than 5% & no will)
• If no surviving
eligible child
 Oldest surviving
eligible grandchild
39
Single Heir Rule
(less than 5% & no will)
• If no surviving eligible
grandchild
Oldest surviving
eligible greatgrandchild
40
Single Heir Rule
(less than 5% & no will)
• If no surviving eligible
child, grandchild or
great-grandchild
Tribe
41
Single person-•Never married
•Widowed
•Divorced
•Common Law
(less than 5% & no will)
42
Example 1:
• Person has no
written will
 No Spouse
 No Children
 No Grandchildren
 No Great
Grandchildren
43
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
Lame Deer
Ft Hall
(Each is less than 5%)
44
Single Heir Rule
(no will)
• Undivided interest of less
than 5% passes to:
Tribe with
jurisdiction
45
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
Lame Deer
Ft Hall
(Each is less than 5%)
46
Example 2: Single,
no spouse
•Has living
Children
(less than 5% & no will)
47
Children defined
(AIPRA)
•Biological
•Legally
adopted
48
Example 2: Dad passes
Survivors: 2 kids
DAD
Child
Age 19
Child
Age 29
(less than 5% & no will)
49
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
Lame Deer
Ft Hall
(Each is less than 5%)
50
Single Heir Rule
•All interests
pass to oldest
surviving
eligible child
(less than 5% & no will)
51
Which child receives?
DAD
(less than 5% &
no will)
Child
Age 19
Child
Age 29
52
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
Lame Deer
Ft Hall
(Receives less than 5%
interest on each reservation)
53
Married--AIPRA
• Includes
 Separated
 Legal
separation
54
Example 4:
Ages of Children
Wife
(less than 5%
& no will)
Husband
Child
Child
Child
Age 18 Age 22 Age 24
55
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
Lame Deer
Ft Hall
(Each is less than 5%)
56
Single Heir Rule (no will)
•Interests of less
than 5%
pass to oldest
surviving
eligible child
57
Survivors: Husband & Children
(less than 5% & no will)
Husband
Wife
0
Child
Age 18
Child
Age 22
0
0
Child
Age 24
All
58
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
Lame Deer
Ft Hall
(Each is less than 5%)
59
Children & Spouse
Husband
Child
Age 18
Spouse
Lives on
Lame Deer
parcel
Child
Child
Age 22 Age 24
60
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)
61
Life Estate
• Allows life tenant
to have possession
of property during
his/her lifetime
–But not ownership
of property
(less than 5% & no will)
62
Single Heir Rule: No will
• Oldest child receives:
 Remainder interest
 home
 land
Receives parcels with
interests of less than
5%.
63
Remainderman
•Person entitled
to property after
the life tenant
has passed away
64
Oldest Child
Spouse – life estate
 .017366111 = 1.7%
Lame Deer
.015625000 = 1.6%
.007812500 = 0.8%
.011458333 = 1.1%
.007812500 = 0.8%
.026041666 = 2.6%
Ft Belknap
Blackfeet
Ft Peck
Lame Deer
Ft Hall
(less than 5% & no will)
65
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%
66
Spouse passes away
(less than 5% & no will)
Wife
Husband
Child
0
Child
0
Oldest
Child
Age 24
67
Upon Mother’s passing
oldest child receives:
• Remainder interest
–1.7% parcel Lame Deer
• Includes family home
68
Oldest Child Receives
remainder interest
.017366111 = 1.7%
.015625000 = 1.6%
.007812500 = 0.8%
.011458333 = 1.1%
.007812500 = 0.8%
.026041666 = 2.6%
Lame Deer
Ft Belknap
Blackfeet
Ft Peck
Lame Deer
Ft Hall
(less than 5% & no will)
69
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.
70
Fact Sheet #6
•Your Undivided
Interest:
5% or more
•What Happens If
You Pass Away
Without a
Written Will?
71
To find out how much
interest you own:
•
Check your
Individual Trust
Interest Report
(ITI Report)
72
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
Lame Deer
Ft Hall
(5% or more)
73
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
Lame Deer
Ft Hall
(5% or more)
74
AIPRA distribution
depends on:
• Marital Status
• Descendants
75
Family Situations:
Single
 Married

(5% & more, no will)
76
Both parents alive
Mother
Father
Single
Person
Passed Away
(5% or more, no will)
77
Parents inherit equally
Mother
1/2
Father
1/2
Single
Person
Passed Away
(5% or more, no will)
78
Mother receives all
Mother
ALL
Father
Deceased
Single
Person
Passed Away
(5% or more, no will)
79
Survivors: 3 sisters
Father
Single
person passed
away after
Father & Mother
Mother
Sis Sis Sis
(5% or more, no will)
80
Equal Amounts to Sisters
Father
Single
person passed
away after
Father & Mother
Mother
1/3 1/3 1/3
(5% or more, no will)
81
Two Brothers Survive
Sisters passed
away before brother
Brother Sister
Sister
Brother
Brother
Niece Nephew Nephew Nephew Nephew Nephew
(5% or more & no will)
82
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
83
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
84
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
85
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)
86
Example:
• Single
 With Children
(5% & more, no will)
87
Survivors : 3 children
Child
Single
Parent
Passed
Away
(5% & more,
no will)
Child
Child
88
Children Share Equally
(5% & more, no will)
Parent
Passed
Away
1/3
1/3
1/3
89
Grandchildren do not inherit
Parent
1/3
0
(5% & more,
no will)
1/3
0
0
1/3
0
Grandchildren
0
0
90
Child
passed
away
before
parent
o
What does grandchild
receive, if any?
Parent
(5% & more, no
will)
?
?
? ? ? ? ? ?
Grandchildren
91
Legal Term
• Grandchildren
inherit by:
Right of
Representation
(5% & more, no will)
92
Right of Representation
• Grandchildren receive
the share their parent
would have received if
he/she had lived.
93
Child
passed
away
before
parent
Grandchild inherits by
right of representation
Parent
1/3
o
1/3
(5% & more,
no will)
0
1/3
0
0
Grandchildren
0
0
94
Survivors: Child &
Grandchildren
Two
children
passed
away
before
parent
o
Parent
(5% & more,
no will)
?
o
? ? ? ? ? ?
Grandchildren
95
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
96
Survivors: Child &
Grandchildren
Parent
Passes
Away
(5% & more,
no will)
?
? ? ? ? ? ?
o
o
Grandchildren
97
Survivors: Child &
Grandchildren
(5% & more,
no will)
1/3
o
1/3
Parent
Passes
Away
0
o
0
1/9 1/9 1/9
Grandchildren
98
Survivors: Child &
Grandchildren
Parent
Passes
Away
(5% & more,
no will)
?
? ? ? ? ? ?
o
o
Grandchildren
99
Survivors:
Grandchildren
(5% & more,
no will)
o
1/3
Parent
Passes
Away
o
1/6
All
children
passed
away
before
parent
o
1/6
1/9
Grandchildren
1/9
1/9
100
Child
passed
away
before
parent
Daughter
Grandchild
0
John’s
Great-grandchild
John
Child
passed
away
before
parent
1/2
0
Son
0
1/6 1/6 1/6
John’s
Grandchildren
Family Situation
•Married
person
102
Wife Has Priority
(5% & more, no will)
Father
Husband
Mother
Wife
receives
life estate
103
Husband has priority
(5% & more, no will)
Father
Mother
Husband
receives
life estate
Wife
104
Survivors
(5% or more, no will)
Wife
Husband
Their
Child
Their
Child
Their
Child
105
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)
106
Wife – Life Estate
Wife
Life Estate
Husband
Remainder Interest
Their
Child
Their
Child
Their
Child
(5% or more, no will)
107
Life estate income
• Spouse receives




Lease
Royalties
Mineral income
Rent
108
Passing of Spouse
• Property held in life
estate passes to the
remaindermen
Children
109
Trust Property
(5% or more, no will)
Husband
Wife
Life Estate
IRA tribe
Remainder Interest
Their
Child
Their
Child
Their
Child
110
Remainder Interests
Parent
1/3
0
(5% & more,
no will)
1/3
0
0
1/3
0
Grandchildren
0
0
111
American Indian
Probate Reform
Act (AIPRA)
IIM
Accounts
112
Your (IIM) Account
What happens to
your money if you
pass away without
a will?
• Fact Sheet #13
113
IIM Accounts
• Money
earned from
 Leases
 Timber/Land Sales
 Grazing
 Mineral Royalty Payments
114
Do I have an IIM
account?
•Office of the
Special Trustee
(OST) on each
reservation
•Ledger Report
115
OST Phone Numbers
Blackfeet: 406-338-7518
Fort Peck: 406-768-3288
Fort Belknap: 406-353-2281
Fort Hall: 208-238-2310
116
How to get my IIM
Ledger?
•Toll Free
1-888-678-6836
•Enrollment Number
•Last 4 numbers of SS#
•Date of Birth
•Mailing Address
117
Trust Status
•Indian spouse &
Eligible Heirs
– retain trust status
of money in
account
118
Non-Indians
•Secretary of
Interior
distributes
IIM monies to
them
119
IIM
(no will)
Distribution
•Depends on
Family Situation
– Single
– Married
120
Survivors: Parents
Mother
Father
1/2
1/2
Single
Person
121
IIM: $5,000
Mother
$2,500
Dad
$2,500
Single
Person
122
IIM equally to
brothers & sisters
Father
Single
person passed
away after
Father & Mother
Mother
1/3 1/3 1/3
123
IIM Account: $3,000
Father
Single
person passed
away after
Father & Mother
Mother
$1,000 $1,000 $1,000
124
2 living, 2 deceased
Sisters passed
away before brother
Brother Sister
Sister
(no will)
Brother
Brother
Niece Nephew Nephew Nephew Nephew Nephew
125
IIM Distribution
Bachelor Sister
Brother
Sister
Brother
Brother
1/2
1/2
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
0
126
IIM Distribution
Bachelor Sister
Brother
Sister
Brother
Brother
o
All
Niece Nephew Nephew Nephew Nephew Nephew
0
0
0
0
0
0
127
Survivors : 3 kids
Single
Parent
Passed
Away
Child
Child
Child
128
IIM passes in equal
shares (no will)
Parent
Passed
Away
1/3 1/3 1/3
129
Equal shares to children
Parent
1/3
0
(no will)
1/3
0
0
1/3
0
Grandchildren
0
0
130
Person
passed
away
before
parent
Parent
IIM
Distribution
(no will)
?
?
?
?
?
Grandchildren
0
?
?
?
/ ? //
131
Child
passed
away
before
parent
IIM: Children &
Grandchild inherit
(no will)
Parent
1/3
1/3
0
1/3
0
0
Grandchildren
0
0
132
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
133
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
134
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
135
Family Situation
• Married
person
136
IIM Account
Husband
Wife
All
137
$2,000 IIM
Husband
Wife
$2,000
138
IIM Account
Husband
Their
Child
Wife
Their
Child
Their
Child
139
IIM Account-no
will
•Surviving
Spouse
•1/3
140
IIM Account-no
will
• Children split
remaining
•2/3
141
IIM Accounts
Wife
1/3
Husband
Equally divide 2/3
Their
Child
2/9
Their
Child
2/9
Their
Child
2/9
142
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
143
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
144
IIM $9,000
Wife
1/3
$3,000
Husband
Equally divide 2/3 = $6,000
Their
Child
$6,000
145
Summary
•Surviving
Spouse
–All if no
children
146
Summary
•Surviving
Spouse
–1/3
•Children
–2/3
147
Writing a Will
•Fact
Sheet
#9
148
Written Will
• Pass undivided
interests in trust
lands and IIM
money to
whomever you
choose
149
At what age can
I write a will?
• Age 18
& older
150
Does a will have
to be written?
•YES!!!
– Includes
•Typed
• Computer
• Handwritten
151
Does my will have
to be witnessed?
• Federal law--YES
• Two witnesses
– Neither “should”
be a beneficiary in
the will
152
HOLOGRAPHIC
WILL
 Signature &
provisions in
handwriting of
the will maker
 2 witnesses
153
BIA Policy
•
Agency staff
does not
•write wills
•store wills
154
AIPRA
•Special Rule
–if undivided
interests are left
to more than 1
person in a
written will
155
AIPRA presumption
•Heirs Inherit
–Joint tenancy
with right of
survivorship
156
JOINT TENANCY
•
On passing
of one
–survivors
take all
157
AIPRA assumes joint
tenancy
Parent
Passed
Away
JT
JT
JT
158
Later one child passes
away
Parent
Passed
Away
JT
JT
JT
159
Second child passes
away
Parent
Passed
Away
JT
JT
Solely
owned
160
Where to keep
your will?
• Safe Place
– Montana
•Clerk of the
District Court
161
Changing will
•
Can be
changed
during lifetime
as long as you
are competent
162
Review Will
• Marriage
• Remarriage
• Divorce
• Birth of child
• Adoption of child
• Passing of heir
163
Review Will (cont’d)
•Move to
another
reservation
•Acquire
additional
property
164
Adopted Child
•
Tribal Adoption
Laws
– treated as will
maker’s child, not
biological parents’
child
165
Pretermitted
Child (omitted)
• If not mentioned in
will
• May be able to inherit
same share that he/she
would have received
without a will
166
Divorce
• Under AIPRA
– Former spouse
does not receive
property
mentioned in will
167
Separation
•AIPRA
–Separation is not
equivalent to
divorce
–Still married if
separated
168
Self Proved Will
• Affidavit
–Will maker &
witnesses sign &
acknowledge they
were witnessing the
signing of will before
notary
169
Self Proved Will
•Notary
–Also signs &
dates the will
–Use his/her
official seal on
the will
170
Residuary Clause
• Last clause
– Person to receive
any part that may
be left after rest of
will clauses are
carried out
171
Summary
• To Whom
• Residuary clause
• Date & will
maker’s signature
• Signatures of 2
witnesses
172
American
Indian Probate
Reform Act
of 2004
(AIPRA)
173