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Understanding Tribal Probate Code

Curiale Hostnik PLLC Nov. 24, 2020

Estate planning is important for all persons in the United States. With a proper will or trust in place, assets can be passed on to heirs and beneficiaries seamlessly. Wills generally end up in what is known as probate court, as do the estates of those who die without a will (otherwise known in legal terms as those who die intestate). A living trust or any other type of trust can often resolve these issues outside of probate court.

When it comes to Native Americans who live on U.S. trust property, or those who have Individual Indian Money (IIM) accounts, probate is mandated by a federal law known as the American Indian Probate Reform Act (AIPRA) of 2004. This type of probate is managed by the Bureau of Indian Affairs (BIA) and is not subject to state probate laws.

In light of the AIPRA, you may be wondering if Native Americans can benefit from estate planning to help ensure their beneficiaries receive their fair share of trust assets? Are the rules the same for any non-Native Americans and their estate planning? What about the AIPRA and state probate laws? Do they intersect?

If you’re a Native American in or around Tacoma, Washington, the law office of Curiale Hostnik PLLC has 35 years of experience helping people just like you. Get your estate planning started today with a friendly consultation. We understand tribal law and all its nuances and can help you outline an estate plan that can provide security for you and your family.

What Are the Differences Between State Probate and Native American Probate?

When a person dies with or without a will, the resolution and distribution of that person’s estate generally end up in a state probate court where a judge will decide any issues. If the decedent was a Native American residing on Indian trust property with undivided interest or ownership, the probate proceedings pass to the Bureau of Indian Affairs (BIA) and its Office of Hearings and Appeal (OHA).

Indian trust property is any property held by the U.S. government for the benefit of Native Americans. It cannot be sold without BIA approval, and without a will, can only be inherited by someone who is Indian in sufficient genealogical measure, meaning within two degrees of being native, such as a child or grandchild. With a will, the property can pass to any descendant, Indian or not.

Issues of Indian trust property must go through federal probate as dictated by the AIPRA. A notice of death must be given to the local BIA office, which then prepares a “probate package” to deliver to the OHA. The hearings agency will then appoint an administrative law judge to oversee probate proceedings, where all debts will be settled and remaining assets distributed.

As opposed to Indian trust property, fee (or fee simple) property is any land on tribal territory not controlled by the U.S. government, meaning it can be sold or transferred to anyone. It is also known as taxable property that is subject to both state and local tax laws. Tribes, however, have the right to repurchase fee land at fair market value when it goes into probate, which can be run either by the state or the tribe itself.

Tribal Probate May Prevail

State courts cannot adjudicate tribal trust assets, and the BIA probate court cannot adjudicate non-tribal assets. Thus, if a Native American dies owning any fee or non-tribal land property, two types of probate will have to occur — state and BIA. State probate can generally take anywhere from a few months to a year, but BIA probate can often take years. In certain cases, there may be a third avenue.

Some tribes have established their own probate laws, in which case probate would be handled by the tribe itself and not the BIA and OHA. If the decedent resided on tribal (reservation) property, then the tribal probate court would also handle non-Indian-trust assets such as fee simple property. If the decedent resided off tribal land, the state probate court would retain jurisdiction over any non-trust assets.

Estate Planning for Native Americans

A last will and testament remains one of the most basic forms of estate planning and is a viable option for Native Americans. Even if the executor of the will owns both fee property and an interest in Indian trust property, only one will would be necessary, though both state and federal — or tribal — probate may ensue.

Establishing a living trust can help you avoid probate altogether, but a living trust generally cannot be used for trust property that is managed and restricted by the U.S. government. It can, however, be applied to assets outside of the U.S. Indian trust.

A “gift deed,” which has to be approved by the BIA, can achieve many of the benefits of a living trust when it comes to Indian trust property. Probate can be avoided and the trust property is transferred to an heir in privacy. In addition, tax savings are involved, and eligibility for government benefits can be preserved.

How Curiale Hostnik PLLC Can Help with Your Estate Plan

With over 35 years of experience with tribal and legal matters in Tacoma, Puyallup, Gig Harbor, and University Place, as well as across all of Washington State — we at Curiale Hostnik PLLC stand ready to meet with you, assess your situation, and outline a collaborative plan that will help you achieve your goals through a strategic estate plan.

We'll go over all of your legal options and walk you through the steps that you need to take to see that you and your family are taken care of for the future.

Tribal law, especially when it involves the BIA, can be complicated and difficult to navigate, with several layers of contingencies. Don’t face these complexities on your own. Allow our firm to provide you with the reliable legal counsel and guidance you need to secure your future. Contact us today to get started.