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Your Land Your Decision - What is a Probate?

A Guide to help American Indians & Alaska Natives understand the Department of the Interior’s (DOI) Probate Process. How can this guide help me?

This guide is intended to provide American Indian and Alaska Native (AI/AN) trust or restricted landowners with basic information about the Department of the Interior’s (DOI) probate process. This information pertains only to the probate of Trust or Restricted Lands and Trust Personalty as defined by 25 CFR part 15 and 43 CFR part 30.

This guide is for informational purposes only and is not intended to provide legal advice. Probate laws can and do change and are sometimes complex. Each case is unique and may have special factors; therefore, if you want professional advice for your legal situation you should seek the advice and counsel of an attorney.

You may call or visit your local Bureau of Indian Affairs Agency office (Agency), Tribal Probate Program office, Office of the Special Trustee for American Indians (OST), or Office of Hearings and Appeals (OHA) for more information.

Table of Contents:

Page links:

What is a Probate?

Who will process the probate?

What are the basic steps of the probate process?

Why is it taking so long?

What assets will the Secretary probate? 25 CFR part 15, § 15.10

What are the basic steps of the probate process? 25 CFR part 15, § 15.11

What happens if assets in a trust estate may be diminished or destroyed while the probate is pending? 25 CFR part 15, § 15.12

How do I begin the probate process? 25 CFR part 15, § 15.103

Does the agency need a death certificate to prepare a probate file? 25 CFR part 15, § 15.104

What other documents does the agency need to prepare a probate file? 25 CFR part 15, § 15.105

May a probate case be initiated when an owner of an interest has been absent? 25 CFR part 15, § 15.106

What happens after the probate file is referred to OHA? 25 CFR part 15, § 15.402

May I receive funds from the decedent's IIM account for funeral services? 25 CFR part 15, § 15.301

May I file a claim against an estate? 25 CFR part 15, § 15.302

What happens if there is not enough trust personalty to pay all the claims? 43 CFR part 30, § 30.147

How may I find out the status of a probate? 25 CFR part 15, § 15.501

Will I receive notice of the probate proceeding? 43 CFR part 30, § 30.114

What action will the judge take if the interested parties agree to settle matters among themselves? 43 CFR part 30, § 30.150

What is a summary probate proceeding? 43 CFR part 30, § 30.200

How will I receive notice of the formal probate proceeding? 43 CFR part 30, § 30.210

How may I obtain documents related to the probate proceeding? 43 CFR part 30, § 30.215

Must testimony in a probate proceeding be under oath or affirmation? 43 CFR part 30, § 30.225

What notice of the decision will the judge provide? 43 CFR part 30, § 30.237

What happens after the probate order is issued? 25 CFR part 15, § 15.403

May I file a petition for rehearing if I disagree with the judge's decision in the formal probate hearing? 43 CFR part 30, § 30.238

Does any distribution of the estate occur while a petition for rehearing is pending?43 CFR part 30, § 30.239

May a judge reopen a probate case to correct errors and omissions? 43 CFR part 30, § 30.125

May a closed probate case be reopened? 43 CFR part 30, § 30.243

What happens if the judge reopens the case? 43 CFR part 30, § 30.245

How must minors or other legal incompetents be represented? 43 CFR part 30, § 30.253

Contact Information

12 Regions

Definitions

What is a Probate?

25 CFR part 15 defines a Probate as:

“Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent's estate is applied in order to:

(1) Determine the heirs;

(2) Determine the validity of wills and determine devisees;

(3) Determine whether claims against the estate will be paid from trust personalty*; and

(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.”

*For purposes of this guide “trust personalty” will be referred to as “trust funds” throughout the remainder of this guide.

In other words, when an AI/AN passes away and owned trust or restricted lands and/or trust funds at the time of death, there must be a way of transferring the trust lands/funds to the deceased person’s heirs or to whoever is to take ownership under the terms of a will. OHA will determine what trust lands/funds the deceased person owned, determine the deceased person’s legal heirs or devisees and order distribution of the trust or restricted lands or funds to the appropriate persons.

As you can see the probate of trust or restricted land and trust funds uses legal terms such as “heirs” and “devisees”, please see the Definitions section in this booklet for an explanation of these terms. (Table of Contents)

Who will process the probate?

Several federal agencies within the DOI are involved in the probate of an AI/AN’s trust or restricted property and trust funds. Below are the agencies/tribal programs that are involved in the probate process along with a brief description of their role in this process:

  • DOI, Bureau of Indian Affairs and/or Tribes (tribes that contract or compact with the Federal government for the BIA’s probate function). For purposes of this brochure, the word Agency applies to both the BIA Agency Office and Tribes that contract or compact with the Federal government.
    • Agency learns of, or receives notification of, an AI/AN’s death and verifies.
    • Agency determines if the decedent owned trust or restricted property and/or trust funds at the time of his/her death. Requests and/or gathers the appropriate documents and prepares a probate file according to the regulation.
    • Agency refers the completed probate file to OHA for assignment to a judge or Attorney Decision Maker (ADM).
    • After the OHA judge or ADM issues a decision, the BIA, Land Titles and Records Office (LTRO) will update the land title record of the deceased AI/AN’s trust or restricted property to reflect the heirs or devisees as the current owners.
  • DOI, Office of Hearings and Appeals (OHA)
    • OHA judge or ADM decides how the trust or restricted lands and/or trust funds will be distributed among the eligible heirs or devisees.
  • DOI, Office of the Special Trustee for the American Indians (OST)
    • After the OHA judge or ADM issues the decision, and following any appeals, OST will distribute the assets in the deceased AI/AN’s Individual Indian Money (IIM) account to the eligible heirs or devisees listed in OHA’s decision. (Table of Contents)

What are the basic steps of the probate process?

Probate Process

This illustration is intended to show only the very basic steps of the probate process. Please see 25 CFR part 15 and 43 CFR part 30 for more information regarding the probate process. (Table of Contents)

Why is it taking so long?

One of the most frequently asked questions is, “Why does it take so long to complete the probate process?” There is no set time frame for the process of probating trust or restricted lands and/or trust funds. The completion of a probate requires the coordination and collaboration of the Agency, LTRO, OHA, and OST. Gathering the required documents such as death certificates, marriage licenses, and adoption decrees requires the cooperation of the decedent’s heirs. The gathering of these documents can sometimes take months to complete; therefore, it is important that interested parties respond to requests for information in a timely manner.

When the Agency has gathered all of the required documents, they will forward the probate package to OHA for adjudication. OHA will review, prioritize, and ultimately schedule the estate for a formal hearing or summary probate. There is no set time frame for the scheduling of hearings. OHA sometimes returns probate packages to the Agency for clarification and/or further documentation; this can cause delays in the scheduling of the hearing.

Once OHA issues an Order, an interested party may appeal OHA’s Order which can result in further delays. Some cases are more complex than others, requiring more review time, and the entire process can, at times, take a year or more to complete. Once the OHA Order is final, LTRO will update the land title record to reflect OHA’s Order and OST will distribute the trust funds from the estate.

The following Question & Answers are from the Code of Federal Regulations (CFR). 

What assets will the Secretary probate? 25 CFR part 15, § 15.10

(a) We will probate only the trust or restricted land, or trust personalty owned by the decedent at the time of death.

(b) We will not probate the following property:

(1) Real or personal property other than trust or restricted land or trust personalty owned by the decedent at the time of death;

(2) Restricted land derived from allotments made to members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek, and Seminole) in Oklahoma; and

(3) Restricted interests derived from allotments made to Osage Indians in Oklahoma (Osage Nation) and Osage headright interests owned by Osage decedents.

(c) We will probate that part of the land and assets owned by a deceased member of the Five Civilized Tribes or Osage Nation who owned a trust interest in land or a restricted interest in land derived from an individual Indian who was a member of a Tribe other than the Five Civilized Tribes or Osage Nation. (Table of Contents)

What are the basic steps of the probate process? 25 CFR part 15, § 15.11

The basic steps of the probate process are:

(a) We learn about a person's death;

(b) We prepare a probate file that includes documents sent to the agency;

(c) We refer the completed probate file to OHA for assignment to a judge or ADM; and

(d) The judge or ADM decides how to distribute any trust or restricted land and/or trust personalty, and we make the distribution. (Table of Contents)

What happens if assets in a trust estate may be diminished or destroyed while the probate is pending? 25 CFR part 15, § 15.12

(a) This section applies if an interested party or BIA:

(1) Learns of the death of a person owning trust or restricted property; and

(2) Believes that an emergency exists and the assets in the estate may be significantly diminished or destroyed before the final decision and order of a judge in a probate case.

(b) An interested party, the Superintendent, or other authorized representative of BIA has standing to request relief.

(c) The interested party or BIA representative may request:

(1) That OHA immediately assign a judge or ADM to the probate case;

(2) That BIA transfer a probate file to OHA containing sufficient information on potential interested parties and documentation concerning the alleged emergency for a judge to consider emergency relief in order to preserve estate assets; and

(3) That OHA hold an expedited hearing or consider ex parte relief to prevent impending or further loss or destruction of trust assets. (Table of Contents)

How do I begin the probate process? 25 CFR part 15, § 15.103

As soon as possible, contact any of the following offices to inform us of the decedent's death:

(a) The agency or BIA regional office nearest to where the decedent was enrolled;

(b) Any agency or BIA regional office; or

(c) The Trust Beneficiary Call Center in OST.

(Anyone may notify us of a death and there is no deadline to notify us; however, notifying us as soon as possible assures a more timely distribution of the estate.) (Table of Contents)

Does the agency need a death certificate to prepare a probate file? 25 CFR part 15, § 15.104

(a) Yes. You must provide us with a certified copy of the death certificate if a death certificate exists. If necessary, we will make a copy from your certified copy for our use and return your copy.

(b) If a death certificate does not exist, you must provide an affidavit containing as much information as you have concerning the deceased, such as:

(1) The State, city, reservation, location, date, and cause of death;

(2) The last known address of the deceased;

(3) Names and addresses of others who may have information about the deceased; and

(4) Any other information that is available concerning the deceased, such as newspaper articles, an obituary, death notices, or a church or court record. (Table of Contents)

What other documents does the agency need to prepare a probate file? 25 CFR part 15, § 15.105

In addition to the certified copy of a death certificate or other reliable evidence of death listed in §15.104, we need the following information and documents:

(a) Originals or copies of all wills, codicils, and revocations, or other evidence that a will may exist;

(b) The Social Security number of the decedent;

(c) The place of enrollment and the tribal enrollment or census number of the decedent and potential heirs or devisees;

(d) Current names and addresses of the decedent's potential heirs and devisees;

(e) Any sworn statements regarding the decedent's family, including any statements of paternity or maternity;

(f) Any statements renouncing an interest in the estate including identification of the person or entity in whose favor the interest is renounced, if any;

(g) A list of claims by known creditors of the decedent and their addresses, including copies of any court judgments; and

(h) Documents from the appropriate authorities, certified if possible, concerning the public record of the decedent, including but not limited to, any:

(1) Marriage licenses and certificates of the decedent;

(2) Divorce decrees of the decedent;

(3) Adoption and guardianship records concerning the decedent or the decedent's potential heirs or devisees;

(4) Use of other names by the decedent, including copies of name changes by court order; and

(5) Orders requiring payment of child support or spousal support. (Table of Contents)

May a probate case be initiated when an owner of an interest has been absent? 25 CFR part 15, § 15.106

(a) A probate case may be initiated when either:

(1) Information is provided to us that an owner of an interest in trust or restricted land or trust personalty has been absent without explanation for a period of at least 6 years; or

(2) We become aware of other facts or circumstances from which an inference may be drawn that the person has died.

(b) When we receive information as described in §15.106(a), we may begin an investigation into the circumstances, and may attempt to locate the person. We may:

(1) Search available electronic databases;

(2) Inquire into other published information sources such as telephone directories and other available directories;

(3) Examine BIA land title and lease records;

(4) Examine the IIM account ledger for disbursements from the account; and

(5) Engage the services of an independent firm to conduct a search for the owner.

(c) When we have completed our investigation, if we are unable to locate the person, we may initiate a probate case and prepare a file that may include all the documentation developed in the search.

(d) We may file a claim in the probate case to recover the reasonable costs expended to contract with an independent firm to conduct the search. (Table of Contents)

What happens after the probate file is referred to OHA? 25 CFR part 15, § 15.402

When OHA receives the probate file from BIA, it will assign the case to a judge or ADM. The judge or ADM will conduct the probate proceeding and issue a written decision or order, in accordance with 43 CFR part 30. (Table of Contents)

May I receive funds from the decedent's IIM account for funeral services? 25 CFR part 15, § 15.301

(a) You may request an amount of no more than $1,000 from the decedent's IIM account if:

(1) You are responsible for making the funeral arrangements on behalf of the family of a decedent who had an IIM account;

(2) You have an immediate need to pay for funeral arrangements before burial; and

(3) The decedent's IIM account contains more than $2,500 on the date of death.

(b) You must apply for funds under paragraph (a) of this section and submit to us an original itemized estimate of the cost of the service to be rendered and the identification of the service provider.

(c) We may approve reasonable costs of no more than $1,000 that are necessary for the burial services, taking into consideration:

(1) The total amount in the IIM account;

(2) The availability of non-trust funds; and

(3) Any other relevant factors.

(d) We will make payments directly to the providers of the services. (Table of Contents)

May I file a claim against an estate? 25 CFR part 15, § 15.302

If a decedent owed you money, you may make a claim against the estate of the decedent.

Please see §§15.303, 15.304, and 15.305 to find out where, when and what must be included in your claim against an estate. 

(Table of Contents)

What happens if there is not enough trust personalty to pay all the claims? 43 CFR part 30, § 30.147

If, as of the date of death, there was not enough trust personalty to pay all allowed claims, the judge may order them paid on a pro rata basis. The unpaid balance of any claims will not be enforceable against the estate after the estate is closed. (Table of Contents)

How may I find out the status of a probate? 25 CFR part 15, § 15.501

You may get information about the status of an Indian probate by contacting any BIA agency or regional office, an OST fiduciary trust officer, OHA, or the Trust Beneficiary Call Center in OST. (Table of Contents)

Will I receive notice of the probate proceeding? 43 CFR part 30, § 30.114

(a) If the case is designated as a formal probate proceeding, OHA will send a notice of hearing to:

(1) Potential heirs and devisees named in the probate file;

(2) Those creditors whose claims are included in the probate file; and

(3) Other interested parties identified by OHA.

(b) In a case designated a summary probate proceeding, OHA will send a notice of the designation to potential heirs and devisees and will inform them that a formal probate proceeding may be requested instead of the summary probate proceeding. (Table of Contents)

What action will the judge take if the interested parties agree to settle matters among themselves? 43 CFR part 30, § 30.150

(a) A judge may approve a settlement agreement among interested parties resolving any issue in the probate proceeding if the judge finds that:

(1) All parties to the agreement are advised as to all material facts;

(2) All parties to the agreement understand the effect of the agreement on their rights; and

(3) It is in the best interest of the parties to settle.

(b) In considering the proposed settlement agreement, the judge may consider evidence of the respective values of specific items of property and all encumbrances.

(c) If the judge approves the settlement agreement under paragraph (a) of this section, the judge will issue an order approving the settlement agreement and distributing the estate in accordance with the agreement. (Table of Contents)

What is a summary probate proceeding? 43 CFR part 30, § 30.200

(a) A summary probate proceeding is the disposition of a probate case without a formal hearing on the basis of the probate file received from the agency. A summary probate proceeding may be conducted by a judge or an ADM, as determined by the supervising judge.

(b) A decedent's estate may be processed summarily if the estate involves only cash and the total value of the estate does not exceed $5,000 on the date of death. (Table of Contents)

How will I receive notice of the formal probate proceeding? 43 CFR part 30, § 30.210

OHA will provide notice of the formal probate proceeding under §30.114(a) by mail and by posting. A posted and published notice may contain notices for more than one hearing, and need only specify the names of the decedents, the captions of the cases and the dates, times, places, and purposes of the hearings.

(a) The notice must:

(1) Be sent by first class mail;

(2) Be sent and posted at least 21 days before the date of the hearing; and

(3) Include a certificate of mailing with the date of mailing, signed by the person mailing the notice.

(b) A presumption of actual notice exists with respect to any person to whom OHA sent a notice under paragraph (a) of this section, unless the notice is returned by the Postal Service as undeliverable to the addressee.

(c) OHA must post the notice in each of the following locations:

(1) Five or more conspicuous places in the vicinity of the designated place of hearing; and

(2) The agency with jurisdiction over each parcel of trust or restricted property in the estate.

(d) OHA may also post the notice in other places and on other reservations as the judge deems appropriate. (Table of Contents)

How may I obtain documents related to the probate proceeding? 43 CFR part 30, § 30.215

(a) You may make a written demand to produce documents for inspection and copying. This demand:

(1) May be made at any stage of the proceeding before the conclusion of the hearing;

(2) May be made on any other party to the proceeding or on a custodian of records concerning interested parties or their trust property;

(3) Must be made in writing, and a copy must be filed with the judge; and

(4) May demand copies of any documents, photographs, or other tangible things that are relevant to the issues, not privileged, and in another party's or custodian's possession, custody, or control.

(b) Custodians of official records will furnish and reproduce documents, or permit their reproduction, under the rules governing the custody and control of the records.

(1) Subject to any law to the contrary, documents may be made available to any member of the public upon payment of the cost of producing the documents, as determined reasonable by the custodians of the records.

(2) Information within federal records will be maintained and disclosed as provided in 25 U.S.C. 2216(e), the Privacy Act, and the Freedom of Information Act. (Table of Contents)

Must testimony in a probate proceeding be under oath or affirmation? 43 CFR part 30, § 30.225

Yes. Testimony in a probate proceeding must be under oath or affirmation. (Table of Contents)

What notice of the decision will the judge provide? 43 CFR part 30, § 30.237

When the judge issues a decision, the judge must mail or deliver a notice of the decision, together with a copy of the decision, to each affected agency and to each interested party. The notice must include a statement that interested parties who are adversely affected have a right to file a petition for rehearing with the judge within 30 days after the date on which notice of the decision was mailed. The decision will become final at the end of this 30-day period, unless a timely petition for rehearing is filed with the judge. (Table of Contents)

What happens after the probate order is issued? 25 CFR part 15, § 15.403

(a) If the probate decision or order is issued by an ADM, you have 30 days from the decision mailing date to file a written request for a de novo review.

(b) If the probate decision or order is issued by a judge, you have 30 days from the decision mailing date to file a written request for rehearing. After a judge's decision on rehearing, you have 30 days from the mailing date of the decision to file an appeal, in accordance with 43 CFR parts 4 and 30.

(c) When any interested party files a timely request for de novo review, a request for rehearing, or an appeal, we will not pay claims, transfer title to land, or distribute trust personalty until the request or appeal is resolved.

(d) If no interested party files a request or appeal within the 30-day deadlines in paragraphs (a) and (b) of this section, we will wait at least 15 additional days before paying claims, transferring title to land, and distributing trust personalty. At that time:

(1) The LTRO will change the land title records for the trust and restricted land in accordance with the final decision or order; and

(2) We will pay claims and distribute funds from the IIM account in accordance with the final decision or order. (Table of Contents)

May I file a petition for rehearing if I disagree with the judge's decision in the formal probate hearing? 43 CFR part 30, § 30.238

(a) If you are adversely affected by the decision, you may file with the judge a written petition for rehearing within 30 days after the date on which the decision was mailed under §30.237.

(b) If the petition is based on newly discovered evidence, it must:

(1) Be accompanied by one or more affidavits of witnesses stating fully the content of the new evidence; and

(2) State the reasons for the failure to discover and present that evidence at the hearings held before the issuance of the decision.

(c) A petition for rehearing must state specifically and concisely the grounds on which it is based.

(d) The judge must forward a copy of the petition for rehearing to the affected agencies. (Table of Contents)

Does any distribution of the estate occur while a petition for rehearing is pending? 43 CFR part 30, § 30.239

The agencies must not initiate payment of claims or distribute any portion of the estate while the petition is pending, unless otherwise directed by the judge. (Table of Contents)

May a judge reopen a probate case to correct errors and omissions? 43 CFR part 30, § 30.125

(a) On the written request of an interested party, or on the basis of the judge's own order, at any time, a judge has the authority to reopen a probate case to:

(1) Determine the correct identity of the original allottee, or any heir or devisee;

(2) Determine whether different persons received the same allotment;

(3) Decide whether trust patents covering allotments of land were issued incorrectly or to a non-existent person; or

(4) Determine whether more than one allotment of land had been issued to the same person under different names and numbers or through other errors in identification.

(b) The judge will notify interested parties if a probate case is reopened and will conduct appropriate proceedings under this part. (Table of Contents)

May a closed probate case be reopened? 43 CFR part 30, § 30.243

(a) The judge may reopen a closed probate case as shown in the following table.

How the case can be reopened

Applicable deadline

Standard for reopening the case

(1) On the judge's own motion

(i) Initiated within 3 years after the date of the original decision

To correct an error of fact or law in the original decision.

 

(ii) Initiated more than 3 years after the date of the original decision

To correct an error of fact or law in the original decision which, if not corrected, would result in a manifest injustice.

(2) On a petition filed by the agency

(i) Filed within 3 years after the date of the original decision

To correct an error of fact or law in the original decision.

 

(ii) Filed more than 3 years after the date of the original decision

To correct an error of fact or law in the original decision which, if not corrected, would result in a manifest injustice.

(3) On a petition filed by the interested party

(i) Filed within 3 years after the date of the original decision and within 1 year after the petitioner's discovery of an alleged error

To correct an error of fact or law in the original decision.

 

(ii) Filed more than 3 years after the date of the original decision and within 1 year after the petitioner's discovery of an alleged error

To correct an error of act or law in the original decision which, if not corrected, would result in a manifest injustice.

(c) A petition filed by an interested party must:(b) All grounds for reopening must be set forth fully in the petition.

(1) Include all relevant evidence, in the form of documents or affidavits, concerning when the petitioner discovered the alleged error; and

(2) If the grounds for reopening are based on alleged errors of fact, be supported by affidavit. (Table of Contents)

What happens if the judge reopens the case? 43 CFR part 30, § 30.245

On reopening, the judge may affirm, modify, or vacate the former decision.

(a) The final order on reopening must include a notice stating that interested parties who are adversely affected have a right to appeal the final order to the Board within 30 days of the date on which the order was mailed, and giving the Board's address.

(b) Copies of the judge's decision on reopening must be mailed to the petitioner and to all persons who received copies of the petition.

(c) By order directed to the agency, the judge may suspend further distribution of the estate or income during the reopening proceedings.

(d) The judge must file the record made on a reopening petition with the designated LTRO and must furnish a duplicate record to the affected agencies.(Table of Contents)

How must minors or other legal incompetents be represented? 43 CFR part 30, § 30.253

Minors and other legal incompetents who are interested parties must be represented by legally appointed guardians, or by guardians ad litem appointed by the judge. In appropriate cases, the judge may order the payment of fees to the guardian ad litem from the assets of the estate. (Table of Contents)

Contact Information

Below is a map of the 12 BIA Regions and the contact information for the BIA Division of Probate & Estate Services office located at each Regional Office.(Table of Contents)

 

BIA Regional Office

Location

DPES Telephone #

Alaska

Juneau, Alaska

(907) 271-3911

Eastern

Nashville, Tennessee

(615) 564-6770

Eastern Oklahoma

Muskogee, Oklahoma

(918) 781-4611

Great Plains

Aberdeen, South Dakota

(605) 226-7665

Midwest

Bloomington, Minnesota

(612) 725-4500

Navajo

Gallup, New Mexico

(928) 871-5935

Northwest

Portland, Oregon

(503) 231-2276

Pacific

Sacramento, California

(916) 978-6070

Rocky Mountain

Billings, Montana

(406) 247-7907

Southern Plains

Shawnee, Oklahoma

(405) 273-0317

Southwest

Albuquerque, New Mexico

(505) 563-3334

Western

Phoenix, Arizona

(602) 379-4299

12 REGIONS

Probate 12 Regions

For information regarding your Individual Indian Money (IIM) account, you may contact the Office of the Special Trustee for American Indians (OST), Trust Beneficiary Call Center, toll-free at (888) 678-6836 ext. 0 or visit their website at www.doi.gov/ost.

Please visit our website for contact information on the Office of Hearings and Appeals (OHA), Hearing Office locations and a PDF version of the BIA Tribal Leaders Directory. The BIA Tribal Leaders Directory contains contact information for BIA region/agency offices and contact information for the tribes in each BIA Region. (Table of Contents)

Definitions:

The following definitions are from 25 CFR part 15 and 43 CFR part 30.

Administrative law judge (ALJ) means an administrative law judge with the Office of Hearings and Appeals appointed under the Administrative Procedure Act, 5 U.S.C. 3105.

Affidavit means a written declaration of facts by a person that is signed by that person, swearing or affirming under penalty of perjury that the facts declared are true and correct to the best of that person's knowledge and belief.

Agency means:

(1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and

(2) Any office of a tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.

Attorney Decision Maker (ADM) means an attorney with OHA who conducts a summary probate proceeding and renders a decision that is subject to de novo review by an administrative law judge or Indian probate judge.

BIA means the Bureau of Indian Affairs within the Department of the Interior.

Board means the Interior Board of Indian Appeals within OHA.

Creditor means any individual or entity that has a claim for payment from a decedent's estate.

Decedent means a person who is deceased.

Decision or order (or decision and order) means:

(1) A written document issued by a judge making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty;

(2) The decision issued by an attorney decision maker in a summary probate proceeding; or

(3) A decision issued by a judge finding that the evidence is insufficient to determine that a person is dead by reason of unexplained absence.

Department means the Department of the Interior.

Devise means a gift of property by will. Also, to give property by will.

Devisee means a person or entity that receives property under a will.

DPES means the Division of Probate & Estate Services within the Bureau of Indian Affairs.

Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.

Formal probate proceeding means a proceeding, conducted by a judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.

Heir means any individual or entity eligible to receive property from a decedent in an intestate proceeding.

Individual Indian Money (IIM) Account means an interest bearing account for trust funds held by the Secretary that belong to a person who has an interest in trust assets. These accounts are under the control and management of the Secretary.

Indian means, for the purposes of the Act, any of the following:

(1) Any person who is a member of a federally recognized Indian tribe is eligible to become a member of any federally recognized Indian tribe, or is an owner (as of October 27, 2004) of a trust or restricted interest in land;

(2) Any person meeting the definition of Indian under 25 U.S.C. 479; or

(3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.

Interested party means:

(1) Any potential or actual heir;

(2) Any devisee under a will;

(3) Any person or entity asserting a claim against a decedent's estate;

(4) Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or

(5) A co-owner exercising a purchase option.

Intestate means that the decedent died without a valid will as determined in the probate proceeding.

Judge means an Administrative Law Judge or Indian Probate Judge with OHA.

LTRO means the Land Titles and Records Office within BIA.

Minor means an individual who has not reached the age of majority as defined by the applicable law.

OHA means the Office of Hearings and Appeals within the Department of the Interior.

OST means the Office of the Special Trustee for American Indians within the Department of the Interior.

Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent's estate is applied in order to:

(1) Determine the heirs;

(2) Determine the validity of wills and determine devisees;

(3) Determine whether claims against the estate will be paid from trust personalty; and

(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.

Restricted property means real property, the title to which is held by an Indian but which cannot be alienated or encumbered without the Secretary's consent. For the purpose of probate proceedings, restricted property is treated as if it were trust property. Except as the law may provide otherwise, the term “restricted property” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.

Secretary means the Secretary of the Interior or an authorized representative.

Summary probate proceeding means the consideration of a probate file without a hearing. A summary probate proceeding may be conducted if the estate involves only an IIM account that did not exceed $5,000 in value on the date of the decedent's death.

Superintendent means a BIA Superintendent or other BIA official, including a field representative or one holding equivalent authority.

Testate means that the decedent executed a valid will as determined in the probate proceeding.

Testator means a person who has executed a valid will as determined in the probate proceeding.

Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.

Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.

Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent's trust or restricted property. (Table of Contents)

You may call or visit your local BIA Agency office, Tribal Probate Program office, Office of the Special Trustee for American Indians (OST) or Office of Hearings and Appeals (OHA) office for more information

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