american indian probate reform act of 2004 (aipra)

American Indian Probate Reform Act of 2004(AIPRA)

PolsonJune 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•Don’t put people to sleep zzzzzzzz

•Don’t be a dud!!!!

Marsha’s Version of

Using Response Clicker

•Is already ON•Don’t press these buttons–Menu–Enter–Go to–Clear

Test Your ClickerPress 3/C

• 1/A• 2/B• 3/C • 4/D

Not Accepting Answers

Screen shows your answer

• 1/A• 2/B• 3/C • 4/D

Your Answer1/A

Practice: At this point in time are you?

1. Married2. Single3. Divorced4. Separated5. Widowed

Must respond before end of time

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

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What if I entered wrong answer? Last response counts

• 1/A• 2/B• 3/C • 4/D

Your Answer

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

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Yes No Questions

• Do not use these keys:

•“Yes” or• “No”

Yes or No Questions

• Use •1, if yes•2, if no

Do you own land off the reservation?

Yes No

50%50%

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1. Yes2. No

Purpose of AIPRA•To Prevent Further Fractionation of Trust Lands

•To Encourage Consolidation of Indian Land Ownership

Fractionation:

Each owner has an undivided interest in the entire parcel

Increasing number of owners with each passing generation

Fractionation

6 generation family

1st Generation

Original Allottee

2nd Generation

Original Allottee

1/31/3

1/91/91/9

3rd GenerationOriginal Allottee

1/3 1/31/3

4th GenerationOriginal Allottee

1/3 1/3 1/3

1/9 1/9 1/9

1/36 1/36 1/36 1/36

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

1/3 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

6th Generation with 3 Children

1 1 1144 3 432

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

Fractionation by $$$$• Example

Lease Dollar Amounts

1st Generation

• $1,002 Annual Income

$1,002Annual Income

$334$334 $334

2nd Generation

$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

3th Generation

$1,002Annual Income

$334$334 $334

$111.33 $111.33 $111.33

$27.83 $27.83 $27.83 $27.83

4th Generation

$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

$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

AIPRA controls Trust Property

• Trust LandsThroughout the United States (except Alaska)

• IIM Accounts(Individual Indian Money Accounts)

AIPRA: Probate Sections

•Effective for persons who pass away on or after June 20, 2006

Fact Sheet #3How is Reservation Land Owned by Individuals?

• Trust Status?• Fee Status?

What is the status of your real property on the reservation?

1.Trust2.Fee simple3.Own both

types4.Don’t know

Fee Status

•Land passes according to law of state where land is located

Montana•For fee land & financial accounts:– Montana Intestacy Statutes apply if you pass away without a will

Personal Property

• AIPRA does not affect: Checking Accounts Saving Accounts Vehicles

Montana law Controls these

Fact Sheet #5

•Who can Inherit Your Trust Land & Retain Trust Status?

AIPRA Requirement

•Interests must pass to: Eligible heirs to retain trust status

Eligible heirs(Defined under AIPRA)

• Children• Grandchildren• Great

grandchildren• Brothers & sisters• Half brothers & sisters by

blood• Parents

AIPRA distribution among eligible heirs:

• Depends on percentage of undivided interest owned by the person who passed away

Do you own:Undivided Interests of5% or more?Less than 5%?

Fact Sheet #4

•Your Individual Trust Interest (ITI) Report: How to read it

Where do I get my ITI Report?

•BIA OfficeRealty DepartmentFlathead503-231-6702

Where do I get my ITI Report?

•Northwest Regional OfficeBIA911 Northeast 11th AvenuePortland, Oregon

503-231-6702

Important fact on ITI

Report: • Amount of undivided interest owned in each parcel

ITI Report AGGREGATE DECIMAL

• Right hand side Aggregate decimal

• Decimal to 10 places– .0173611111

Because AIPRA uses percent•Convert decimal to % by moving 2 places to the right.0173611111

= 1.7%

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

Use ITI Report to determine % of ownership

•5% interest or more?•Less than 5% interest?

Fact Sheet #7

If your undivided interest in each allotment is:

less than 5%What Happens If You Pass Away Without Writing a Will?

Single Heir Rule

•Undivided interest of less than 5%passes to one person in following order…..

Single Heir Rule

• First priority: Oldest surviving eligible child

(less than 5% & no (less than 5% & no will)will)

• If no surviving eligible child Oldest surviving eligible grandchild

Single Heir Rule(less than 5% & no (less than 5% & no will)will)

Single Heir Rule

•If no surviving eligible grandchildOldest surviving eligible great- grandchild

Single Heir Rule

•If no surviving eligible child, grandchild or great grandchild

Single Heir Rule

•If tribe does not have jurisdiction

Equal shares to Co-owners

Summary Priority1. Oldest Surviving Eligible

Child2. Oldest Surviving

Grandchild3. Oldest Surviving great

Grandchild4. Tribe with jurisdiction5. Co-Owner

Example: Single person

•Single defined?•Never married•Widowed•Divorced

(less than 5% & no will)(less than 5% & no will)

Example 1: Sara• Sara has no written will

No living parentsNo SpouseNo ChildrenNo GrandchildrenNo Great Grandchildren

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%)

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

Single Heir Rule(no will)(no will)

•Undivided interest of less than 5% passes to:

Tribe with jurisdiction

on each reservation

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%

Example 2: Single, no spouse

•Has living Children

(less than 5% & no will)

Children defined

(AIPRA)•Biological•Legally adopted

Child Age 19

ChildAge 29

Example 2: Dad passes away with 2 kids

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%)

Who receives the interests when Dad has no written will?1. State of

Montana2. Tribe where

land located3. Oldest Child4. Federal

government

Single Heir Rule

•All interests pass to oldest surviving eligible child

(Because less than 5% & no will)

Child Age 19

ChildAge 29

Child age 29 receives

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%)

Married--AIPRA

• Also includes•Separated•Legal separation•Common law not recognized under AIPRA

Example 3: Married

•Husband passes away

•Survivor (Wife)Who is not living on any of the parcels

No Children

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%)

Who receives the interest no written will?

1. Federal government

2. Tribe3. Spouse4. State where

land located

Single Heir Rule

•There is no surviving eligible: child, or grandchild, or great-grandchild

Example 3: Wife not living on parcel

• All interests pass to Tribe where land located

Example 3: Wife not living on parcel

•Spouse receives none of the interests.

Why???? Husband owned less than 5%

interests

Passes to Tribe where interest is located

(Each interest is less than 5%)

Example 4:

•Survivors: Husband

Not living on the parcel

3 Children

Husband

ChildAge 18

ChildAge 22

ChildAge 24

Example 4: Survivors: Husband & Children

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%)

Who receives the interest no written will?

1.State of MT2.Tribe3.Oldest

Surviving Child

4.Oldest Grandchild

Single Heir Rule

•Interests of less than 5% pass to oldest surviving eligible child

(no will)

Husband

ChildAge 18

ChildAge 22

ChildAge 24

Survivors: Husband & Children (less than 5% & no will)

24 year old receives all

(Because each interest is less than 5%)

Example 5:

•Survivors Wife

•living on one of the parcels

3 Children

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

Wife Lives on Flathead

parcel

ChildAge 18

ChildAge 22

ChildAge 24

Husband

Children & Spouse

Who receives the interest no will?

1.State of MT

2.Tribe3.Wife 4.Oldest

Exception: Single Heir Rule

•If spouse living on parcel: He/she receives life estate on that parcel, including the family home

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)

Single Heir Rule: No will

•After death of Mom oldest child (remainderman) receives:Remainder interest

home land

Remainderman

•Person entitled to property after the life tenant has passed away

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

Wife Life Estate

Husband

Trust Land(less than 5%& no will)(less than 5%& no will)

ChildAge 18

ChildAge 22

ChildAge 24parcels with less than 5%

WifeHusband

Spouse passes away(less than 5% & no will)(less than 5% & no will)

Child0

OldestChildAge 24

Child0

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

Upon Mother’s passing oldest child receives:

• Remainder interest–1.7% parcel Flathead

•Includes family home

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

More information:

•Fact Sheet #7Your Undivided Interest of less than 5%:

What Happens If You Pass Away Without a Written Will ?

Fact Sheet #6

•Your Undivided Interest:

5% or more•What Happens If You Pass Away Without a Written Will?

To find out how much interest you own:

• Check your Individual Trust Interest Report (ITI Report)

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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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

AIPRA distribution with 5% or more depends on:

• Marital Status• Descendants

Family Situations

Single Married

(5% & more, no will)

Example 1:

Single Person

• No Children• Parents are Living

(5% or more, no will)

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

Mother

Single Person

Passed Away

Father

Both parents alive

(5% or more, no will)(5% or more, no will)

Mother

1/2Single Person

Passed Away

Father

Parents inherit equally

Example 2: Single Person

• No children• Mother is only living parent

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

Mother

Single Person

Passed Away

FatherDeceased

Mother is the Survivor

Mother

Single Person

Passed Away

FatherDeceased

Mother receives all

Example : Single Person

•No children•Parents are alive•3 living sisters(5% or more, no will)

Single person passed

away after Father & Mother

Sis Sis Sis

Survivors: 3 sisters

Father Mother

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)

Priority parents

Father1/2

Mother1/2

•No children•Parents are deceased

•3 living sisters

Sis Sis Sis

Survivors: 3 sisters

Father Mother

Single Person

If parents are deceased, undivided interest passes equally to:

•Brothers & Sisters

1/3 1/3 1/3

Equal Amounts to Sisters

Father Mother

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)

BrotherDied 2012

SisterDied 1995

Nephew Nephew

SisterDied 1982

Nephew

Brother

Nephew Nephew

Brother

Two Brothers Survive

(5% or more & no will)

Sisters passedaway before brother

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

BrotherDied 2012

SisterDied 1995

Nephew

0Nephew

SisterDied 1982

Nephew

Brother

Nephew

0Nephew

Brother

Equally to Living Brothers

•No children•Parents are deceased•2 sisters & 1 brother are deceased

•1 brother is living(5% or more, no will)

BachelorBrother

Died 2012

SisterDied 1995

Nephew Nephew

SisterDied 1982

Nephew

BrotherrDied 1980

Nephew Nephew

Brother

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

BachelorBrother

Died 2012

SisterDied 1995

Nephew

0Nephew

SisterDied 1982

Nephew

BrotherDied 1980

Nephew

0Nephew

Brother

Living brother receives all

Example 6:

Single Person•No children•Parents are deceased•All sisters & brothers deceased

•Survived by niece & nephews

BachelorBrother

Died 2012

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

BachelorBrother

Died 2012

SisterDied 1995

Nephew

0Nephew

SisterDied 1982

Nephew

BrotherDied 1980

Nephew

0Nephew

BrotherDied 1971

Nieces & Nephews Do NOT Inherit

(5% or more no will)

Distribution

•If no surviving eligible:Parent, orBrothers or Sisters

•Land passes to•Tribe where interest in parcel is located

Example 7:

• Single With Children

Survivors : 3 children

SingleParent

PassedAway

Child Child Child

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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1. Children equally 1/3 each

2. Tribe3. State of MT4. Federal

Government

Children Share Equally

Parent Passed

1/3 1/3 1/3

(5% & more, no (5% & more, no will)will)

Example 8:

• Single person: 3 living children 6 living grandchildren

Survivors Children & Grandchildren

Parent

Child Child Child

Grandchild

Grandchildren

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

Children Share Equally

Parent

1/3 1/3 1/3

0 0 00 0 0Grandchildren

Example 9:

•What if ?•1 deceased child who is survived by a child

•2 living children who have children

Parent

Son Son Daughter

GrandChild

Child passedaway

before parent

Grandchildren

What does grandchild receive, if any?

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

Legal Term

Right of Representation

•Grandchildren have a right to inherit what their parent would have received if he/she had lived

Grandchild inherits by right of representation

Parent

o 1/3 1/3

1/3 0 00 0 0

Child passedaway

before parent

Grandchildren

Example 10:

•What if ? a deceased son who is survived by 1 child

a deceased daughter who is survived by 2 children

Parent

Son Son Daughter

GrandChild

Grandchild

GrandChild

Grandchild

ChildGrandchild

Parent

Son Son Daughter

GrandChild

Grandchild

GrandChild

Grandchild

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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•Grandchildren receive the share their parent would have received if he/she had lived.

Parent

Son Son 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren

Survivors: 1 Child & 6 Grandchildren

Example 11:

•What if?a deceased son who is survived by 1 child

a deceased daughter who is survived by 3 children

Survivors: Child & Grandchildren

ParentPasses Away

Son ? Daughter

? ? ?? ? ?Grandchildren

(5% & (5% & more, no more, no will)will)

•Grandchildren receive the share their parent would have received if he/she had lived.

Survivors: Child & Grandchildren

ParentPasses Away

Son 1/3 Daughter

1/3 0 1/90 1/9 1/9Grandchildren

Example 12:

• What if?• All children passed away before their parents & grandchildren are living?

Survivors: Grandchildren

ParentPasses Away

Son Son Daughter

GrandChild

All children passed

away before parent

Grandchildren

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?

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1. 1/92. 1/33. 1/64. None, passes to

Tribe5. None, passes to

federal gov’t

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

Example 13:

• What if?• survivors are children, grandchildren & great grandchildren?(5% or more, no will)(5% or more, no will)

Daughter 1/2 Son

Grandchild 0 1/60 1/6 1/6

Child passed

away before parent

John’sGrandchildren

Child passed

away before parent

John’sGreat-grandchild

Family Situation

•Married person

Example 1: Married

• No children• Parents are alive

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

Husband dies; Wife Has Priority

Father Mother

Husband

Wife receives life estate

(5% & more, no will)(5% & more, no will)

Wife dies; Husband has priority

Father Mother

Husbandreceives life estate

(5% & more, no will)(5% & more, no will)

Example 2: Married

• Husband passes away Wife living 3 living children

TheirChild

Husband

Survivors(5% or more, no will)(5% or more, no will)

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

Wife Life Estate

TheirChild

Husband

Wife – Life Estate

Married – no will5% or more interest• Trust property passes to surviving spouse as a life estate without regard to waste.

Legal Term

•Without regard to waste: Life tenant can do anything to land while the he/she is alive

Life Estate for Surviving Spouse

• Any income from trust lands during his/her lifetime

Life estate income

• Spouse receives Lease Royalties Mineral income Rent

Passing of Spouse

•Property held in life estate for wife (mother) passes to the remaindermenChildren

Wife Life Estate

TheirChild

Husband

Trust Property (5% or more, no will)

Remainder Interest

Remainderman - children

.1073661111

.0056250000

.5000000000

.2324583333

.1478125000

.0090416667

AggregateAggregate

DecimalDecimal = 10.7 %= 0.6%= 50.0 %= 23.2 %= 14.7 %= 0.9 %

Percent

Remainder Interests

Parent

1/3 1/3 1/3

(5% & more, (5% & more, no no will)will)

Legal Term

•Grandchildren inherit remainder interests by Right of Representation

Remainder Interests

Parent

Son 1/3 1/3

1/3 0 00 0 0

Child passedaway

before parent

Grandchildren

Remainder Interests

Parent

1/3 1/3 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren

Remainder Interests

ParentPasses

Son 1/3 Daughter

1/3 0 1/90 1/9 1/9

Grandchildren

Summary•Retaining & receiving trust land depends on:Eligible heirs% interest ownedFamily situation Whether a will is written

Writing a Will

•Fact Sheet #9

Written Will• Provides you with the ability to control where your undivided interests in trust lands & IIM money goes

At what age can I write a will?

• Age 18 & older

Does a will have to be written?•YES!!!

– Includes• Typed• Computer software

Does my will have to be witnessed?

• Federal law--YES• Two witnesses

– Neither “should” be a beneficiary in the will

HOLOGRAPHIC WILL—AIPRA rulesSignature & provisions in handwriting of the will maker

2 witnesses

CSKT• Limited will drafting services

•Also stores wills

AIPRA•Special Rule

–if undivided interests are left to more than 1 person in a written will

AIPRA presumption

•Heirs Inherit –Joint tenancy with right of survivorship

JOINT TENANCY

• On passing of one–survivors take all

Example 1:

•Mary wills her land to her 3 children equally

AIPRA assumes joint tenancy among children

Parent Passed

JT JT JT

Later one child passes away

Parent PassedAway

JT JT JT

Second child passes away

Parent Passed

JT JT Solely owned

Where to keep your will?

• Safe Place– CSKT offers will storage

Changing will

• Can be changed during lifetime as long as you are competent

Review Will •Marriage•Remarriage•Divorce•Birth of child•Adoption of child•Passing of heir (con’d)

Review Will (cont’d) •Move to another reservation

•Acquire additional property

Adopted Child

• Tribal Adoption Laws– treated as child of will maker’s, not biological

parents’ child

Pretermitted Child (omitted)•If not mentioned in will •May be able to inherit same share that he/she would have received without a will

Divorce• Under AIPRA

– Former spouse does not receive property mentioned in will

Separation•AIPRA

–Separation is not equivalent to divorce

–Still married even if separated for a long time

Self Proved Will•Affidavit

–Will maker & witnesses sign & acknowledge they were witnessing the signing of will before notary

Self Proved Will

•Notary–Also signs & dates the will

–Use his/her official seal on the will

Residuary Clause

• Last clause– Person to receive any part that may be left after rest of will clauses are carried out

Summary•Have residuary clause•Be sure to date & sign signature

•Signatures of 2 witnesses are required

More Information

•Fact Sheet #9

Writing a Will

American Indian Probate Reform Act of 2004(AIPRA)

American Indian Probate Reform Act (AIPRA)

IIM Accounts are in Trust

Your (IIM) Account

• Fact Sheet #13

What happens to your IIM money if you pass away without a will?

IIM Accounts• Money earned from

Leases

Timber/Land Sales

Grazing

Mineral Royalty Payments

Do I have an IIM account?•CSKT Technicians for IIM accounts•Debbie Caye•Dani Bisson

•406-675-2700•Exts 1015, 1319

How to get my IIM Ledger?

•Toll Free1-888-678-6836

•Enrollment Number•Last 4 numbers of SS#

•Date of Birth•Mailing Address

Trust Status•Indian spouse & eligible heirs– retain trust status of money in account

Non-Indians•Secretary of Interior distributes IIM monies directly to them

IIM Distribution

•Depends on Family Situation– Single– Married

(no will)

Example 1: Single

•No spouse•No children•No grandchildren•No great grandchildren

–Parents are living

Mother

Single Person

Father

Survivors: Parents

IIM account: $5,000

Mother

$2,500Dad

$2,500

Single Person

Mother

Single Person

Father

Survivor: One Parent

Mother

$5,000

Single Person

Father

Survivor: One parent

Example 2:•If no spouse, no children, no grandchildren, no great grandchildren or no parents

–Brothers & sisters split IIM money

1/3 1/3 1/3

IIM equally to brothers & sisters

Father Mother

$1,000 $1,000$1,000

IIM Account: $3,000

Father Mother

•No children•Parents deceased•Brothers & sisters

• Deceased & living

(no will)

Brother

Sister

Nephew Nephew

Sister

Nephew

Brother

Nephew Nephew

Brother

2 living, 2 deceased(no will)(no will)Sisters passed

away before brother

IIM Distribution

BachelorBrother

Sister

Nephew

0Nephew

Sister

Nephew

Brother

Nephew

0Nephew

Brother

IIM Distribution

Brother

Sister

Nephew

0Nephew

Sister

Nephew

Brother

$1,500

Nephew

0Nephew

Brother

$1,500

Brother

Sister

Nephew

0Nephew

Sister

Nephew

Brother

$1,500

Nephew

0Nephew

Brother

$3,000

IIM Distribution

Example 4:

•Single– with children

(no will)(no will)

Survivors : 3 kidsSingleParent PassedAway

Child Child Child

IIM passes in equal shares

Parent PassedAway

1/3 1/3 1/3

(no will)

$3,000 in IIM account passes in equal shares

Parent PassedAway

$1,000 $1,000 $1,000

(no will)(no will)

Example 5:

•Single person– 3 living children– 6 living grandchildren

(no will)(no will)

Equal shares to children

Parent

1/3 1/3 1/3

(no will)

Equal shares to children

Parent

$1,000 $1,000 $1,000

(no will)(no will)

Example 6: IIM

•What if ?•a person (with 1 child) passes away before parents?

(no will)

Parent

Son ? ?

? ? ??0

? ?/ ? //

Person passedaway

before parent

Grandchildren

(no will)

IIM Distribution

• Grandchildren receive the IIM share their parent would have received if he/she had lived

(no will)

IIM: Children & Grandchild inherit

Parent

Son 1/3 1/3

1/3 0 00 0

Child passedaway

before parent

0Grandchildren

(no will)

Example 7:

•What if ?• A son with 1 child• A daughter with 2 children passed away before parent?

(no will)

Parent

Son Son 1/3

1/3 1/6 01/6 0 0

Two children passed

away before parent

Grandchildren

(no will)

IIM Distribution

Example 8:

•What if ?• A son with 1 child• A daughter with 3 children passed away before parent?

(no will)

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

Example 9:•What if ?

•All children pass away before parents

• There are 6 living grandchildren

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)

Summary

•IIM Account Distribution– depends upon family situation for a single person

(no will)

Family Situation

• Married person

Example 1: Married

•Survivors –Wife–No children

(no will)

WifeAll

Husband

IIM Account

HusbandWife

$2,000

$2,000 IIM

Example 2: Married

•Survivors –Wife–3 Children

(no will)

TheirChild

Husband

IIM Account

TheirChild

Husband

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

IIM Account-no will

•Surviving Spouse

•1/3

IIM Account-no will• Children split remaining

•2/3

Wife1/3

TheirChild2/9

Husband

IIM Accounts

Equally divide 2/3

Wife1/3

$3,000

TheirChild

$2,000

TheirChild

$2,000

TheirChild

$2,000

Husband

IIM $9,000

Equally divide 2/3 = $6,000

Example 3: Married

•Survivors –Wife–2 living children–1 deceased child with children

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

Summary

•Surviving Spouse –All if no children

Summary•If there are biological children –Surviving Spouse –1/3

•Children –2/3

More Information

•Fact Sheet #13

What happens to your IIM money if you pass away without a will?

american indian probate reform act of 2004 (aipra)

annual income

reservation land

fractionation of trust

number of years

montana intestacy statutes

willpersonal property

law of state

number of owners

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