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1 American Indian Probate Reform Act of 2004 (AIPRA)

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Presentation on theme: "1 American Indian Probate Reform Act of 2004 (AIPRA)"— Presentation transcript:

1 1 American Indian Probate Reform Act of 2004 (AIPRA)

2 2 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

3 3 Purpose of AIPRA To Prevent Further Fractionation of Trust Lands. To Encourage Consolidation of Indian Land Ownership.

4 4 AIPRA: Probate Sections Effective for persons who pass away on or after June 20, 2006

5 5 AIPRA State law no longer applies to Trust Property when a person passes away without a will.

6 6 14 Fact Sheets Highlight Describe Illustrate

7 7 AIPRA distribution among eligible heirs: Depends on percentage of undivided interest owned by the person who passed away

8 8 Do you own:  5% or more?  Less than 5%?

9 9 Fact Sheet #4 Your Individual Trust Interest (ITI) Report: How to read it

10 10 Where do I get my ITI Report? Local BIA Office  Realty Department  Fort Peck 

11 11 Where do I get my ITI Report? BIA Regional Office  Rocky Mountain Region  Billings

12 12 Important fact on ITI Report: Amount of undivided interest owned in each parcel.

13 13 ITI Report AGGREGATE DECIMAL Right side, lower middle Decimal – C

14 14 Because AIPRA uses percent Convert Decimal to % =1.7% C

15 15 Example: ITI Report = 1.7% Ft Peck = 15.6% Ft Belknap = 0.8% Blackfeet = 11.5% Ft Peck = 0.8% Standing R = 2.6% Ft Hall

16 16 Use ITI Report to determine % of ownership 5% or more? Less than 5%?

17 17 Fact Sheet #7  If your undivided interest in each allotment is: less than 5%  What Happens If You Pass Away Without Writing a Will?

18 18 Single Heir Rule Undivided interest of less than 5%  passes to one person in following order…..

19 19 Single Heir Rule First priority:  Oldest surviving eligible child (less than 5% & no will)

20 20 If no surviving eligible child  Oldest surviving eligible grandchild Single Heir Rule (less than 5% & no will)

21 21 Single Heir Rule If no surviving eligible grandchild  Oldest surviving eligible great- grandchild (less than 5% & no will)

22 22 Single Heir Rule If no surviving eligible child, grandchild or great-grandchild  Tribe (less than 5% & no will)

23 23 Single Heir Rule If tribe does not have jurisdiction  Equal shares to Co-owners (less than 5% & no will)

24 24 Single person-- Never married Widowed Divorced Common Law (less than 5% & no will)

25 25 Example 1: Person has no written will  No Spouse  No Children  No Grandchildren  No Great Grandchildren

26 26 ITI Report  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

27 27 Single Heir Rule Undivided interest of less than 5% passes to:  Tribe with jurisdiction (no will)

28 28 Tribe Inherits  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

29 29 Example 2: Single, no spouse Has living Children (less than 5% & no will)

30 30 Children defined (AIPRA) Biological Legally adopted

31 31 Child Age 19 Child Age 29 DAD Example 2: Dad passes Survivors: 2 kids (less than 5% & no will)

32 32 Dad’s ITI Report  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

33 33 Single Heir Rule All interests pass to oldest surviving eligible child (less than 5% & no will)

34 34 Child Age 19 Child Age 29 DAD Which child receives? (less than 5% & no will)

35 35 Oldest Child – Age = 1.7% Ft Peck = 1.6% Ft Belknap = 0.8% Blackfeet = 1.1% Ft Peck = 0.8% Standing = 2.6% Ft Hall (Receives <5% interest on each reservation)

36 36 Married--AIPRA Includes  Separated  Legal separation

37 37 Example 3: Married Husband passes away Survivor: Wife  not living on a parcel  No Children (less than 5% & no will)

38 38 Husband’s ITI Report  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

39 39 Single Heir Rule There is no surviving eligible:  child or  grandchild or  great-grandchild (less than 5% & no will)

40 40 Example 3: Wife not on parcel (less than 5% & no will) All interests pass to Tribe. Spouse receives nothing.

41 41 Passes to Tribe where interest is located  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

42 42 Example 4: Survivors:  Husband  Not living on the parcel  3 Children (less than 5% & no will)

43 43 Husband Child Age 18 Child Age 22 Child Age 24 Wife Example 4: Ages of Children (less than 5% & no will)

44 44 Mom’s ITI Report  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

45 45 Single Heir Rule Interests of less than 5%  pass to oldest surviving eligible child (no will)

46 46 Husband 0 Child Age 18 0 Child Age 22 0 Child Age 24 All Wife Survivors: Husband & Children (less than 5% & no will)

47 47 24 year old receives all  = 1.7% Ft Peck  = 1.6% Ft Belknap  = 0.8% Blackfeet  = 1.1% Ft Peck  = 0.8% Standing R  = 2.6% Ft Hall (Each is less than 5%)

48 48 Family Example 5 Survivors  Wife living on one of the parcels  3 Children (less than 5% & no will)

49 49 Spouse lives on parcel = 1.7% Ft Peck = 1.6% Ft Belknap = 0.8% Blackfeet = 1.1% Ft Peck = 0.8% Standing = 2.6% Ft Hall (less than 5% & no will)

50 50 Spouse Lives on Fort Peck parcel Child Age 18 Child Age 22 Child Age 24 Husband Children & Spouse

51 51 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)

52 52 Life Estate Allows life tenant to have possession of property during his/her lifetime –But not ownership of property (less than 5% & no will)

53 53 Single Heir Rule: No will Oldest child receives :  Remainder interest  home  land  Receives parcels with interests of less than 5%.

54 54 Remainderman Person entitled to property after the life tenant has passed away

55 55 Oldest Child Spouse – life estate  = 1.7% Ft Peck = 1.6% Ft Belknap = 0.8% Blackfeet = 1.1% Ft Peck = 0.8% Standing = 2.6% Ft Hall (less than 5% & no will)

56 56 Wife Life Estate Husband Trust Land (less than 5%& no will) Child Age 18 0 Child Age 22 0 Child Age 24 parcels with less than 5%

57 57 Wife Husband Spouse passes away (less than 5% & no will) Child 0 Oldest Child Age 24 Child 0

58 58 Upon Mother’s passing oldest child receives: Remainder interest – 1.7% parcel Fort Peck Includes family home

59 59 Oldest Child Receives remainder interest = 1.7% Ft Peck = 1.6% Ft Belknap = 0.8% Blackfeet = 1.1% Ft Peck = 0.8% Standing = 2.6% Ft Hall (less than 5% & no will)

60 60 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.

61 61 More information: Fact Sheet #7  Your Undivided Interest of less than 5%:  What Happens If You Pass Away Without a Written Will ?

62 62 American Indian Probate Reform Act of 2004 (AIPRA)


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