american indian probate reform act of 2004 (aipra)
DESCRIPTION
American Indian Probate Reform Act of 2004 (AIPRA). Polson June 7, 2012. Marsha A. Goetting. Montana State University Extension Family Economics Specialist Department of Agricultural Economics & Economics. Special Request from Nori & Planning Committee. Don’t be boring - PowerPoint PPT PresentationTRANSCRIPT
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American Indian Probate Reform Act of 2004(AIPRA)
PolsonJune 7, 2012
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Marsha A. Goetting• Montana State University Extension Family Economics Specialist• Department of Agricultural
Economics & Economics
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Special Request from Nori & Planning Committee
•Don’t be boring•Don’t put people to sleep zzzzzzzz
•Don’t be a dud!!!!
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Marsha’s Version of
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Using Response Clicker
•Is already ON•Don’t press these buttons–Menu–Enter–Go to–Clear
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Test Your ClickerPress 3/C
• 1/A• 2/B• 3/C • 4/D
Not Accepting Answers
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Screen shows your answer
• 1/A• 2/B• 3/C • 4/D
Your Answer1/A
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Practice: At this point in time are you?
1. Married2. Single3. Divorced4. Separated5. Widowed
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Must respond before end of time
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Practice: Number of Years Lived in Montana
0 - 9 10 - 19 20 - 29 30 - 39 40 - 49 50 &over
0% 0% 0%0%0%0%
1. 0 - 92. 10 - 193. 20 - 294. 30 - 395. 40 - 496. 50 & over
CountdownCountdown
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What if I entered wrong answer? Last response counts
• 1/A• 2/B• 3/C • 4/D
Your Answer
4D
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Practice: Number of Years Lived in Montana
0 - 9 10 - 19 20 - 29 30 - 39 40 - 49 50 &over
0% 0% 0%0%0%0%
1. 0 - 92. 10 - 193. 20 - 294. 30 - 395. 40 - 496. 50 & over
CountdownCountdown
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Yes No Questions
• Do not use these keys:
•“Yes” or• “No”
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Yes or No Questions
• Use •1, if yes•2, if no
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Do you own land off the reservation?
Yes No
50%50%
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1. Yes2. No
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Purpose of AIPRA•To Prevent Further Fractionation of Trust Lands
•To Encourage Consolidation of Indian Land Ownership
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Fractionation:
Each owner has an undivided interest in the entire parcel
Increasing number of owners with each passing generation
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Fractionation
6 generation family
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1st Generation
Original Allottee
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1/3
2nd Generation
Original Allottee
1/31/3
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1/91/91/9
3rd GenerationOriginal Allottee
1/3 1/31/3
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4th GenerationOriginal Allottee
1/3 1/3 1/3
1/9 1/9 1/9
1/36 1/36 1/36 1/36
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5th GenerationOriginal Allottee
1/3 1/3 1/3
1/9 1/9 1/9
1/36 1/36 1/36 1/36
1/144 1/144 1/144 1/144
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6th GenerationOriginal Allottee
1/3 1/3 1/3
1/9 1/9 1/9
1/36 1/36 1/36 1/36
1/144 1/144 1/144 1/144
???
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6th Generation with 3 Children
1 1 1144 3 432
=x
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6th GenerationOriginal Allottee
1/3 1/3 1/3
1/9 1/9 1/9
1/36 1/36 1/36 1/36
1/144 1/144 1/144 1/144
1/4321/432 1/432
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Fractionation by $$$$• Example
Lease Dollar Amounts
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1st Generation
• $1,002 Annual Income
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$1,002Annual Income
$334$334 $334
2nd Generation
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$1,002Annual Income
$334$334 $334
$111.33 $111.33 $111.33
3th Generation
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$1,002Annual Income
$334$334 $334
$111.33 $111.33 $111.33
$27.83 $27.83 $27.83 $27.83
4th Generation
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$1,002Annual Income
$334$334 $334
$111.33 $111.33 $111.33
$27.83 $27.83
$6.96 $6.96 $6.96 $6.96
$27.83 $27.83
5th Generation
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$1,002Annual Income
$334$334 $334
$111.33 $111.33 $111.33
$27.83 $27.83
$6.96 $6.96 $6.96 $6.96
$27.83 $27.83
$2.32$2.32$2.32
6th Generation
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AIPRA controls Trust Property
• Trust LandsThroughout the United States (except Alaska)
• IIM Accounts(Individual Indian Money Accounts)
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AIPRA: Probate Sections
•Effective for persons who pass away on or after June 20, 2006
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Fact Sheet #3How is Reservation Land Owned by Individuals?
• Trust Status?• Fee Status?
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What is the status of your real property on the reservation?
1.Trust2.Fee simple3.Own both
types4.Don’t know
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Fee Status
•Land passes according to law of state where land is located
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Montana•For fee land & financial accounts:– Montana Intestacy Statutes apply if you pass away without a will
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Personal Property
• AIPRA does not affect: Checking Accounts Saving Accounts Vehicles
Montana law Controls these
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Fact Sheet #5
•Who can Inherit Your Trust Land & Retain Trust Status?
42
AIPRA Requirement
•Interests must pass to: Eligible heirs to retain trust status
43
Eligible heirs(Defined under AIPRA)
• Children• Grandchildren• Great
grandchildren• Brothers & sisters• Half brothers & sisters by
blood• Parents
44
AIPRA distribution among eligible heirs:
• Depends on percentage of undivided interest owned by the person who passed away
45
Do you own:Undivided Interests of5% or more?Less than 5%?
46
Fact Sheet #4
•Your Individual Trust Interest (ITI) Report: How to read it
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Where do I get my ITI Report?
•BIA OfficeRealty DepartmentFlathead503-231-6702
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Where do I get my ITI Report?
•Northwest Regional OfficeBIA911 Northeast 11th AvenuePortland, Oregon
503-231-6702
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Important fact on ITI
Report: • Amount of undivided interest owned in each parcel
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ITI Report AGGREGATE DECIMAL
• Right hand side Aggregate decimal
• Decimal to 10 places– .0173611111
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Because AIPRA uses percent•Convert decimal to % by moving 2 places to the right.0173611111
= 1.7%
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Example: ITI Report
• .0173661111 = 1.7% Ft Peck• .156250000 = 15.6% Flathead• .0078125000 = 0.8% Blackfeet• .114583333 = 11.5% Ft Peck• .0078125000 = 0.8% Flathead• .0260416667 = 2.6% Ft Hall
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Use ITI Report to determine % of ownership
•5% interest or more?•Less than 5% interest?
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Fact Sheet #7
If your undivided interest in each allotment is:
less than 5%What Happens If You Pass Away Without Writing a Will?
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Single Heir Rule
•Undivided interest of less than 5%passes to one person in following order…..
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Single Heir Rule
• First priority: Oldest surviving eligible child
(less than 5% & no (less than 5% & no will)will)
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• If no surviving eligible child Oldest surviving eligible grandchild
Single Heir Rule(less than 5% & no (less than 5% & no will)will)
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Single Heir Rule
•If no surviving eligible grandchildOldest surviving eligible great- grandchild
(less than 5% & no (less than 5% & no will)will)
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Single Heir Rule
•If no surviving eligible child, grandchild or great grandchild
Tribe
(less than 5% & no (less than 5% & no will)will)
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Single Heir Rule
•If tribe does not have jurisdiction
Equal shares to Co-owners
(less than 5% & no (less than 5% & no will)will)
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Summary Priority1. Oldest Surviving Eligible
Child2. Oldest Surviving
Grandchild3. Oldest Surviving great
Grandchild4. Tribe with jurisdiction5. Co-Owner
(less than 5% & no (less than 5% & no will)will)
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Example: Single person
•Single defined?•Never married•Widowed•Divorced
(less than 5% & no will)(less than 5% & no will)
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Example 1: Sara• Sara has no written will
No living parentsNo SpouseNo ChildrenNo GrandchildrenNo Great Grandchildren
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ITI Report
.0173661111 = 1.7% Ft Peck.0156250000 = 1.6% Flathead.0078125000 = 0.8% Blackfeet.0114583333 = 1.1% Ft Peck.0078125000 = 0.8% Flathead.0260416667 = 2.6% Ft Hall
(Each is less than 5%)
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Who receives the interests in the land because Sara has no written will?
1. State of MT2. Tribe with
jurisdiction3. State where
land located4. Federal
government
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Single Heir Rule(no will)(no will)
•Undivided interest of less than 5% passes to:
Tribe with jurisdiction
on each reservation
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Tribe on each reservation inherits .0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall
Because each is less than 5%
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Example 2: Single, no spouse
•Has living Children
(less than 5% & no will)
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Children defined
(AIPRA)•Biological•Legally adopted
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Child Age 19
ChildAge 29
DAD
Example 2: Dad passes away with 2 kids
(less than 5% & no will)
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Dad’s ITI Report
.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall (Each is less than 5%)
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Who receives the interests when Dad has no written will?1. State of
Montana2. Tribe where
land located3. Oldest Child4. Federal
government
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Single Heir Rule
•All interests pass to oldest surviving eligible child
(Because less than 5% & no will)
74
Child Age 19
ChildAge 29
DAD
Child age 29 receives
(less than 5% & no will)
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Passes to Oldest Child – Age 29
.017366111 = 1.7% Ft Peck
.015625000 = 1.6% Flathead
.007812500 = 0.8% Blackfeet
.011458333 = 1.1% Ft Peck
.007812500 = 0.8% Flathead
.026041666 = 2.6% Ft Hall
(Receives interests on each reservation with less than 5%)
76
Married--AIPRA
• Also includes•Separated•Legal separation•Common law not recognized under AIPRA
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Example 3: Married
•Husband passes away
•Survivor (Wife)Who is not living on any of the parcels
No Children
(less than 5% & no will)
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Husband’s ITI Report
.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall
(Each is less than 5%)
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Who receives the interest no written will?
1. Federal government
2. Tribe3. Spouse4. State where
land located
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Single Heir Rule
•There is no surviving eligible: child, or grandchild, or great-grandchild
(less than 5% & no will)
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Example 3: Wife not living on parcel
• All interests pass to Tribe where land located
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Example 3: Wife not living on parcel
•Spouse receives none of the interests.
Why???? Husband owned less than 5%
interests
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Passes to Tribe where interest is located
.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall
(Each interest is less than 5%)
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Example 4:
•Survivors: Husband
Not living on the parcel
3 Children
(less than 5% & no will)
85
Husband
ChildAge 18
ChildAge 22
ChildAge 24
Wife
Example 4: Survivors: Husband & Children
(less than 5% & no will)
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Mom’s ITI Report
.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead
.0260416667 = 2.6% Ft Hall
(Each interest is less than 5%)
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Who receives the interest no written will?
1.State of MT2.Tribe3.Oldest
Surviving Child
4.Oldest Grandchild
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Single Heir Rule
•Interests of less than 5% pass to oldest surviving eligible child
(no will)
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Husband
0
ChildAge 18
0
ChildAge 22
0
ChildAge 24
All
Wife
Survivors: Husband & Children (less than 5% & no will)
90
24 year old receives all
.0173661111 = 1.7% Ft Peck .0156250000 = 1.6% Flathead .0078125000 = 0.8% Blackfeet .0114583333 = 1.1% Ft Peck .0078125000 = 0.8% Flathead .0260416667 = 2.6% Ft Hall
(Because each interest is less than 5%)
91
Example 5:
•Survivors Wife
•living on one of the parcels
3 Children
(less than 5% & no will)
92
Spouse lives on parcel .017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Standing .026041666 = 2.6% Ft Peck
(less than 5% & no will)
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Wife Lives on Flathead
parcel
ChildAge 18
ChildAge 22
ChildAge 24
Husband
Children & Spouse
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Who receives the interest no will?
1.State of MT
2.Tribe3.Wife 4.Oldest
Child
(less than 5% & no (less than 5% & no will)will)
95
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)
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Life Estate
•Allows life tenant to have possession of property during his/her lifetime–But not ownership of property
(less than 5% & no will)(less than 5% & no will)
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Single Heir Rule: No will
•After death of Mom oldest child (remainderman) receives:Remainder interest
home land
98
Remainderman
•Person entitled to property after the life tenant has passed away
99
Oldest ChildSpouse – life estate .017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Flathead.026041666 = 2.6% Ft Hall
(less than 5% & no will)
100
Wife Life Estate
Husband
Trust Land(less than 5%& no will)(less than 5%& no will)
ChildAge 18
0
ChildAge 22
0
ChildAge 24parcels with less than 5%
101
WifeHusband
Spouse passes away(less than 5% & no will)(less than 5% & no will)
Child0
OldestChildAge 24
Child0
102
Oldest Child Receives remainder interest.017366111 = 1.7% Flathead.015625000 = 1.6% Ft Belknap.007812500 = 0.8% Blackfeet.011458333 = 1.1% Ft Peck.007812500 = 0.8% Flathead.026041666 = 2.6% Ft Hall
(less than 5% & no will)
103
Upon Mother’s passing oldest child receives:
• Remainder interest–1.7% parcel Flathead
•Includes family home
(less than 5% & no will)
104
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
105
More information:
•Fact Sheet #7Your Undivided Interest of less than 5%:
What Happens If You Pass Away Without a Written Will ?
106
Fact Sheet #6
•Your Undivided Interest:
5% or more•What Happens If You Pass Away Without a Written Will?
107
To find out how much interest you own:
• Check your Individual Trust Interest Report (ITI Report)
108
.017
3661
111
.105
625
.007
8125
.011
4583
333
.047
8125
.026
0416
667
0% 0% 0%0%0%0%
ITI report…Which one is 5% or more??
1. .01736611112. .10562500003. .00781250004. .01145833335. .04781250006. .0260416667
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109
ITI report which is 5% or more??
.0173661111 on Ft Peck
.1056250000 on Flathead = 10.5%
.0078125000 on Blackfeet
.0114583333 on Ft Peck
.0478125000 on Flathead
.0260416667 on Ft Hall
110
AIPRA distribution with 5% or more depends on:
• Marital Status• Descendants
111
Family Situations
Single Married
(5% & more, no will)
112
Example 1:
Single Person
• No Children• Parents are Living
(5% or more, no will)
113
5% or more on ITI
.0173661111 = 1.7% Ft Peck
.1056250000 = 10.0% Flathead
.5078125000 = 50.0% Blackfeet
.0114583333 = 1.1% Ft Peck
.0878125000 = 8.0% Flathead
.0260416667 = 2.6% Ft Hall
114
Mother
Single Person
Passed Away
Father
Both parents alive
(5% or more, no will)(5% or more, no will)
115
Mother
1/2Single Person
Passed Away
Father
1/2
Parents inherit equally
(5% or more, no will)(5% or more, no will)
116
Example 2: Single Person
• No children• Mother is only living parent
(5% or more, no will)
117
5% or more on ITI
.0173661111 = 1.7% Ft Peck
.1056250000 = 10.0% Flathead
.5078125000 = 50.0% Blackfeet
.0114583333 = 1.1% Ft Peck
.0878125000 = 8.0% Flathead
.0260416667 = 2.6% Ft Hall
118
Mother
Single Person
Passed Away
FatherDeceased
Mother is the Survivor
(5% or more, no will)
119
Mother
ALL
Single Person
Passed Away
FatherDeceased
Mother receives all
(5% or more, no will)
120
Example : Single Person
•No children•Parents are alive•3 living sisters(5% or more, no will)
121
Single person passed
away after Father & Mother
Sis Sis Sis
Survivors: 3 sisters
Father Mother
(5% or more, no will)(5% or more, no will)
122
Who receives interests when they are 5% or more if a single person dies without a will?
1. Mother & Dad equally
2. Sisters equally
3. 1/5 each (mother, dad, three sisters)
123
Single person passed
away after Father & Mother
Sis0
Sis0
Sis0
Priority parents
(5% or more, no will)(5% or more, no will)
Father1/2
Mother1/2
124
Example 3: Single Person
•No children•Parents are deceased
•3 living sisters
(5% or more, no will)
125
Single person passed
away after Father & Mother
Sis Sis Sis
Survivors: 3 sisters
Father Mother
(5% or more, no will)(5% or more, no will)
126
Single Person
If parents are deceased, undivided interest passes equally to:
•Brothers & Sisters
(5% or more, no will)
127
Single person passed
away after Father & Mother
1/3 1/3 1/3
Equal Amounts to Sisters
Father Mother
(5% or more, no will)
128
Example 4:
Single Person
•No children•Parents are deceased•2 sisters are deceased•2 brothers are living
(5% or more, no will) more, no will)
129
BrotherDied 2012
Niece
SisterDied 1995
Nephew Nephew
SisterDied 1982
Nephew
Brother
A
Nephew Nephew
Brother
B
Two Brothers Survive
(5% or more & no will)
Sisters passedaway before brother
130
Who receives interests of 5% or more no will?
1. Brothers equally 1/2
2. Niece & nephews equally 1/6 each
3. Brothers, niece & nephews equally 1/8 each
4. Tribe
131
BrotherDied 2012
Niece
0
SisterDied 1995
Nephew
0Nephew
0
SisterDied 1982
Nephew
0
Brother
1/2
Nephew
0Nephew
0
Brother
1/2
Equally to Living Brothers
(5% or more & no will)
132
Example 5: Single Person
•No children•Parents are deceased•2 sisters & 1 brother are deceased
•1 brother is living(5% or more, no will)
133
BachelorBrother
Died 2012
Niece
SisterDied 1995
Nephew Nephew
SisterDied 1982
Nephew
BrotherrDied 1980
Nephew Nephew
Brother
(5% or more & no will)
Example 5: Single Person
134
Who receives of 5% or more interests no will?
1. Living Brother all 2. Niece & nephews
equally 1/6 each3. Living brother,
niece & nephew equally 1/7 each
4. Tribe
135
BachelorBrother
Died 2012
Niece
0
SisterDied 1995
Nephew
0Nephew
0
SisterDied 1982
Nephew
0
BrotherDied 1980
Nephew
0Nephew
0
Brother
ALL
Living brother receives all
(5% or more & no will)
136
Example 6:
Single Person•No children•Parents are deceased•All sisters & brothers deceased
•Survived by niece & nephews
(5% or more, no will)(5% or more, no will)
137
BachelorBrother
Died 2012
Niece
SisterDied 1995
Nephew Nephew
SisterDied 1982
Nephew
BrotherDied 1980
Nephew Nephew
BrotherDied 1971
Nieces & Nephews Do NOT Inherit
(5% or more no will)
138 Niece & nephew... Tribe Federal govern...
33% 33%33%
Who receives interests of 5% or more no will?
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1. Niece & nephews equally 1/6 each
2. Tribe3. Federal
government
139
BachelorBrother
Died 2012
Niece
0
SisterDied 1995
Nephew
0Nephew
0
SisterDied 1982
Nephew
0
BrotherDied 1980
Nephew
0Nephew
0
BrotherDied 1971
Nieces & Nephews Do NOT Inherit
(5% or more no will)
140
Distribution
•If no surviving eligible:Parent, orBrothers or Sisters
•Land passes to•Tribe where interest in parcel is located
(5% or more, no will)
141
Example 7:
• Single With Children
(5% & more, no will)
142
Survivors : 3 children
SingleParent
PassedAway
Child Child Child
(5% & more, no will)
143 Childrenequal...
Tribe State of MT FederalGovern...
25% 25%25%25%
Who receives interests of 5% or more with no will?
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6
1. Children equally 1/3 each
2. Tribe3. State of MT4. Federal
Government
144
Children Share Equally
Parent Passed
Away
1/3 1/3 1/3
(5% & more, no (5% & more, no will)will)
145
Example 8:
• Single person: 3 living children 6 living grandchildren
(5% & more, no (5% & more, no will)will)
146
Survivors Children & Grandchildren
Parent
Child Child Child
Grandchild
Grandchild
Grandchild
Grandchild
Grandchild
Grandchild
Grandchildren
(5% & more, no will)
147 Children equal... Grandchildren ... Children & gra... Tribe
25% 25%25%25%
Who receives interests of 5% or more no written will?
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1. Children equally 1/3 each
2. Grandchildren equally 1/6 each
3. Children & grandchildren equally 1/9 each
4. Tribe
148
Children Share Equally
Parent
1/3 1/3 1/3
0 0 00 0 0Grandchildren
(5% & more, no will)
149
Example 9:
•What if ?•1 deceased child who is survived by a child
•2 living children who have children
(5% or more, no will)
150
Parent
Son Son Daughter
GrandChild
GrandChild
GrandChild
GrandChild
GrandChild
GrandChild
Child passedaway
before parent
Grandchildren
(5% & more, no (5% & more, no will)will)
What does grandchild receive, if any?
151
What share does grandchild receive, if any, if parent owned 5% or more and no will?
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6 None 1/3 1/8 1/6
25% 25%25%25%
1.None2.1/33.1/84.1/6
152
Legal Term
Right of Representation
•Grandchildren have a right to inherit what their parent would have received if he/she had lived
(5% & more, no will)
153
Grandchild inherits by right of representation
Parent
o 1/3 1/3
1/3 0 00 0 0
Child passedaway
before parent
Grandchildren
(5% & more, no will)
154
Example 10:
•What if ? a deceased son who is survived by 1 child
a deceased daughter who is survived by 2 children
(5% or more, no will)
155
Parent
Son Son Daughter
GrandChild
GrandChild
Grandchild
GrandChild
Grandchild
Grand
ChildGrandchild
Parent
Son Son Daughter
GrandChild
GrandChild
Grandchild
GrandChild
Grandchild
Grand
ChildGrandchild
Two children passed
away before parent
Grandchildren
(5% & (5% & more, no more, no will)will)
Survivors: 1 Child & 6 Grandchildren
Grandchildren
Two children passed
away before parent
Grandchildren
156 Nothing 1/3 1/6 1/7
0% 0%0%0%
What will grandchild with blue lighting bolt receive, if anything, if grandparent owned 5% more more?1.Nothing2.1/33.1/64.1/7
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6
157
Right of Representation
•Grandchildren receive the share their parent would have received if he/she had lived.
(5% & more, no will)
158
Parent
Son Son 1/3
1/3 1/6 01/6 0 0
Two children passed
away before parent
Grandchildren
(5% & more, no will)
Survivors: 1 Child & 6 Grandchildren
159
Example 11:
•What if?a deceased son who is survived by 1 child
a deceased daughter who is survived by 3 children
(5% or more, no will)
160
Survivors: Child & Grandchildren
ParentPasses Away
Son ? Daughter
? ? ?? ? ?Grandchildren
(5% & (5% & more, no more, no will)will)
161
Right of Representation
•Grandchildren receive the share their parent would have received if he/she had lived.
(5% & more, no will)
162
Survivors: Child & Grandchildren
ParentPasses Away
Son 1/3 Daughter
1/3 0 1/90 1/9 1/9Grandchildren
(5% & more, no will)
163
Example 12:
• What if?• All children passed away before their parents & grandchildren are living?
(5% or more, no will)
164
Survivors: Grandchildren
ParentPasses Away
Son Son Daughter
GrandChild
A
GrandChild
B
GrandChild
D
GrandChild
C
GrandChild
E
GrandChild
F
All children passed
away before parent
Grandchildren
(5% & more, no will)
165 1/9 1/3 1/6 None,
passes t... None,
passes t...
20% 20% 20%20%20%
What share, if any, will grandchild D receive if grandchildren are only survivors & Grandparent owned 5% or more?
CountdoCountdownwn
6
1. 1/92. 1/33. 1/64. None, passes to
Tribe5. None, passes to
federal gov’t
166
Survivors: Grandchildren
ParentPasses Away
Son Son Daughter
1/3 1/6 1/91/6 1/9 1/9
All children passed
away before parent
Grandchildren
(5% & more, no will)
167
Example 13:
• What if?• survivors are children, grandchildren & great grandchildren?(5% or more, no will)(5% or more, no will)
168
John
Daughter 1/2 Son
Grandchild 0 1/60 1/6 1/6
0
Child passed
away before parent
John’sGrandchildren
Child passed
away before parent
John’sGreat-grandchild
169
Family Situation
•Married person
170
Example 1: Married
• No children• Parents are alive
(5% or more, no will)(5% or more, no will)
171
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)
172
Husband dies; Wife Has Priority
Father Mother
Husband
Wife receives life estate
(5% & more, no will)(5% & more, no will)
173
Wife dies; Husband has priority
Father Mother
Husbandreceives life estate
Wife
(5% & more, no will)(5% & more, no will)
174
Example 2: Married
• Husband passes away Wife living 3 living children
(5% or more, no will)
175
Wife
TheirChild
TheirChild
TheirChild
Husband
Survivors(5% or more, no will)(5% or more, no will)
176
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)
177
Wife Life Estate
TheirChild
TheirChild
TheirChild
Husband
Wife – Life Estate
(5% or more, no will)(5% or more, no will)
178
Married – no will5% or more interest• Trust property passes to surviving spouse as a life estate without regard to waste.
179
Legal Term
•Without regard to waste: Life tenant can do anything to land while the he/she is alive
180
Life Estate for Surviving Spouse
• Any income from trust lands during his/her lifetime
181
Life estate income
• Spouse receives Lease Royalties Mineral income Rent
182
Passing of Spouse
•Property held in life estate for wife (mother) passes to the remaindermenChildren
183
Wife Life Estate
TheirChild
TheirChild
TheirChild
Husband
Trust Property (5% or more, no will)
Remainder Interest
184
Remainderman - children
.1073661111
.0056250000
.5000000000
.2324583333
.1478125000
.0090416667
AggregateAggregate
DecimalDecimal = 10.7 %= 0.6%= 50.0 %= 23.2 %= 14.7 %= 0.9 %
Percent
185
Remainder Interests
Parent
1/3 1/3 1/3
0 0 00 0 0Grandchildren
(5% & more, (5% & more, no no will)will)
186
Legal Term
•Grandchildren inherit remainder interests by Right of Representation
(5% & more, no (5% & more, no will)will)
187
Remainder Interests
Parent
Son 1/3 1/3
1/3 0 00 0 0
Child passedaway
before parent
Grandchildren
(5% & more, no will)
188
Remainder Interests
Parent
1/3 1/3 1/3
1/3 1/6 01/6 0 0
Two children passed
away before parent
Grandchildren
(5% & more, no will)
189
Remainder Interests
ParentPasses
Away
Son 1/3 Daughter
1/3 0 1/90 1/9 1/9
Grandchildren
(5% & more, no will)
190
Summary•Retaining & receiving trust land depends on:Eligible heirs% interest ownedFamily situation Whether a will is written
191
Writing a Will
•Fact Sheet #9
192
Written Will• Provides you with the ability to control where your undivided interests in trust lands & IIM money goes
193
At what age can I write a will?
• Age 18 & older
194
Does a will have to be written?•YES!!!
– Includes• Typed• Computer software
195
Does my will have to be witnessed?
• Federal law--YES• Two witnesses
– Neither “should” be a beneficiary in the will
196
HOLOGRAPHIC WILL—AIPRA rulesSignature & provisions in handwriting of the will maker
2 witnesses
197
CSKT• Limited will drafting services
•Also stores wills
198
AIPRA•Special Rule
–if undivided interests are left to more than 1 person in a written will
199
AIPRA presumption
•Heirs Inherit –Joint tenancy with right of survivorship
200
JOINT TENANCY
• On passing of one–survivors take all
201
Example 1:
•Mary wills her land to her 3 children equally
202
AIPRA assumes joint tenancy among children
Parent Passed
Away
JT JT JT
203
Later one child passes away
Parent PassedAway
JT JT JT
204
Second child passes away
Parent Passed
Away
JT JT Solely owned
205
Where to keep your will?
• Safe Place– CSKT offers will storage
206
Changing will
• Can be changed during lifetime as long as you are competent
207
Review Will •Marriage•Remarriage•Divorce•Birth of child•Adoption of child•Passing of heir (con’d)
208
Review Will (cont’d) •Move to another reservation
•Acquire additional property
209
Adopted Child
• Tribal Adoption Laws– treated as child of will maker’s, not biological
parents’ child
210
Pretermitted Child (omitted)•If not mentioned in will •May be able to inherit same share that he/she would have received without a will
211
Divorce• Under AIPRA
– Former spouse does not receive property mentioned in will
212
Separation•AIPRA
–Separation is not equivalent to divorce
–Still married even if separated for a long time
213
Self Proved Will•Affidavit
–Will maker & witnesses sign & acknowledge they were witnessing the signing of will before notary
214
Self Proved Will
•Notary–Also signs & dates the will
–Use his/her official seal on the will
215
Residuary Clause
• Last clause– Person to receive any part that may be left after rest of will clauses are carried out
216
Summary•Have residuary clause•Be sure to date & sign signature
•Signatures of 2 witnesses are required
217
More Information
•Fact Sheet #9
Writing a Will
218
American Indian Probate Reform Act of 2004(AIPRA)
219
American Indian Probate Reform Act (AIPRA)
IIM Accounts are in Trust
220
Your (IIM) Account
• Fact Sheet #13
What happens to your IIM money if you pass away without a will?
221
IIM Accounts• Money earned from
Leases
Timber/Land Sales
Grazing
Mineral Royalty Payments
222
Do I have an IIM account?•CSKT Technicians for IIM accounts•Debbie Caye•Dani Bisson
•406-675-2700•Exts 1015, 1319
223
How to get my IIM Ledger?
•Toll Free1-888-678-6836
•Enrollment Number•Last 4 numbers of SS#
•Date of Birth•Mailing Address
224
Trust Status•Indian spouse & eligible heirs– retain trust status of money in account
225
Non-Indians•Secretary of Interior distributes IIM monies directly to them
226
IIM Distribution
•Depends on Family Situation– Single– Married
(no will)
227
Example 1: Single
•No spouse•No children•No grandchildren•No great grandchildren
–Parents are living
228
Mother
1/2
Single Person
Father
1/2
Survivors: Parents
229
IIM account: $5,000
Mother
$2,500Dad
$2,500
Single Person
230
Mother
ALL
Single Person
Father
Survivor: One Parent
231
Mother
$5,000
Single Person
Father
Survivor: One parent
232
Example 2:•If no spouse, no children, no grandchildren, no great grandchildren or no parents
–Brothers & sisters split IIM money
233
Single person passed
away after Father & Mother
1/3 1/3 1/3
IIM equally to brothers & sisters
Father Mother
234
Single person passed
away after Father & Mother
$1,000 $1,000$1,000
IIM Account: $3,000
Father Mother
235
Example 3: Single Person
•No children•Parents deceased•Brothers & sisters
• Deceased & living
(no will)
236
Brother
Niece
Sister
Nephew Nephew
Sister
Nephew
Brother
Nephew Nephew
Brother
2 living, 2 deceased(no will)(no will)Sisters passed
away before brother
237
IIM Distribution
BachelorBrother
Niece
0
Sister
Nephew
0Nephew
0
Sister
Nephew
0
Brother
1/2
Nephew
0Nephew
0
Brother
1/2
238
IIM Distribution
Brother
Niece
0
Sister
Nephew
0Nephew
0
Sister
Nephew
0
Brother
$1,500
Nephew
0Nephew
0
Brother
$1,500
239
Brother
Niece
0
Sister
Nephew
0Nephew
0
Sister
Nephew
0
Brother
$1,500
Nephew
0Nephew
0
Brother
$3,000
IIM Distribution
240
Example 4:
•Single– with children
(no will)(no will)
241
Survivors : 3 kidsSingleParent PassedAway
Child Child Child
242
IIM passes in equal shares
Parent PassedAway
1/3 1/3 1/3
(no will)
243
$3,000 in IIM account passes in equal shares
Parent PassedAway
$1,000 $1,000 $1,000
(no will)(no will)
244
Example 5:
•Single person– 3 living children– 6 living grandchildren
(no will)(no will)
245
Equal shares to children
Parent
1/3 1/3 1/3
0 0 00 0 0Grandchildren
(no will)
246
Equal shares to children
Parent
$1,000 $1,000 $1,000
0 0 00 0 0Grandchildren
(no will)(no will)
247
Example 6: IIM
•What if ?•a person (with 1 child) passes away before parents?
(no will)
248
Parent
Son ? ?
? ? ??0
? ?/ ? //
Person passedaway
before parent
Grandchildren
(no will)
IIM Distribution
249
Right of Representation
• Grandchildren receive the IIM share their parent would have received if he/she had lived
(no will)
250
IIM: Children & Grandchild inherit
Parent
Son 1/3 1/3
1/3 0 00 0
Child passedaway
before parent
0Grandchildren
(no will)
251
Example 7:
•What if ?• A son with 1 child• A daughter with 2 children passed away before parent?
(no will)
252
Parent
Son Son 1/3
1/3 1/6 01/6 0 0
Two children passed
away before parent
Grandchildren
(no will)
IIM Distribution
253
Example 8:
•What if ?• A son with 1 child• A daughter with 3 children passed away before parent?
(no will)
254
IIM Distribution
ParentPasses Away
Son 1/3 Daughter
1/3 0 1/90 1/9 1/9Grandchildren
Child passed
away before parent
Child passed
away before parent
255
Example 9:•What if ?
•All children pass away before parents
• There are 6 living grandchildren
256
Survivors : Grandchildren
ParentPasses Away
Son Son Daughter
1/3 1/6 1/91/6 1/9 1/9
All kids passed
away before parent
Grandchildren
(no will)(no will)
257
Summary
•IIM Account Distribution– depends upon family situation for a single person
(no will)
258
Family Situation
• Married person
259
Example 1: Married
•Survivors –Wife–No children
(no will)
260
WifeAll
Husband
IIM Account
261
HusbandWife
$2,000
$2,000 IIM
262
Example 2: Married
•Survivors –Wife–3 Children
(no will)
263
Wife
TheirChild
TheirChild
TheirChild
Husband
IIM Account
Wife
TheirChild
TheirChild
TheirChild
Husband
264
Who receives the money in IIM account?
All to wife All tochildre...
½ to wife, ½d...
1/3 to wife,2...
0% 0%0%0%
1. All to wife2. All to children3. ½ to wife, ½
divided among children
4. 1/3 to wife, 2/3 divided among children
CountdoCountdownwn
8
265
IIM Account-no will
•Surviving Spouse
•1/3
266
IIM Account-no will• Children split remaining
•2/3
267
Wife1/3
TheirChild2/9
TheirChild2/9
TheirChild2/9
Husband
IIM Accounts
Equally divide 2/3
268
Wife1/3
$3,000
TheirChild
$2,000
TheirChild
$2,000
TheirChild
$2,000
Husband
IIM $9,000
Equally divide 2/3 = $6,000
269
Example 3: Married
•Survivors –Wife–2 living children–1 deceased child with children
270
Wife1/3
$3,000
TheirChild
$2,000
TheirChild
$2,000
TheirChild
$2,000
Husband $9,000
Equally divide 2/3 = $6,000
Grand Child
$1,000
Grand Child
$1,000
Grand Child
0
271
Summary
•Surviving Spouse –All if no children
272
Summary•If there are biological children –Surviving Spouse –1/3
•Children –2/3
273
More Information
•Fact Sheet #13
What happens to your IIM money if you pass away without a will?