The Act was passed by Congress October 27, 2004 and became effective June 20, 2006. The American Indian Probate Reform Act (AIPRA) changes the landscape of federal laws governing the descent, distribution and consolidation of federal trust property. The Act removes the application of state intestacy laws and creates a federal probate code. AIPRA contains provisions for voluntary and involuntary land consolidations and sales both inside and outside of probate. The Act expands tribal authority to draft tribal probate codes which may supersede provisions of the Act, and makes will drafting and estate planning for individuals important.
On December 2, 2008, a third technical amendment was signed into law by the President. For a redline version to see the changes in AIPRA view the Amended Act Redline.
Highlights of changes:
2201(7) - land has been redefined, removing permanent improvements from its definition. Homes built on trust lands where the owner has an underlying interest are now covered in 2006(a) intestate and 2206(h) testamentary.
2206(b)(2)(B) now provides IRA tribes the authority to enact resolutions, codes or laws to permit the devise of trust property out of trust status and into fee status to a non-Indian devisee. Without tribal resolution or enactment, the Act itself prohibits devises of IRA lands in fee to non-Indians.
2206(o) removes provisions for auction of trust lands at probate and provides for sales only. If there are multiple purchasers, the heir will choose who buys the interest. 2206(o)(3)(B). Adds required consent of surviving spouse as well as heirs.
2206(o)(5) now measures the interest of the decedent, not the interest that the heirs were to receive. This eliminates the potential forced sale of interests greater than 5% at probate.
2206(o)(5)(iii) forced sales at probate - limits purchasers at probate for sales without consent of heirs only to tribe with jurisdiction or Secretary, and only if the heir or surviving spouse is 1. not residing on that parcel at time of decedent's death, or 2. is not a member of the tribe, or 3. is not eligible for enrollment with the tribe where the land is located.
The federal rules implementing the American Indian Probate Reform Act were finalized and published November 13, 2008.
The new regulations include: 25 CFR Part 15 Probate of Indian Estates, 25 CFR Part 18 Tribal Probate Codes, and 25 CFR Part 179 Life Estates and Future Interests. 43 CFR Part 4 Department Hearings and Appeals Procedures, and 43 CFR Part 30 Indian Probate Hearing Procedures.
The following charts were created by the Institute to illustrate the intestacy rules under AIPRA for federal trust assets:
- Intestate Rules for Interests Less than 5%
- Intestate Rules for Interests 5% or greater
- Intestate Rules for Trust Personalty
- Estate Planning Options - This one page chart provides a brief overview of rules for testamentary and intestate distribution under AIPRA.
Important forms for Indian Estate Planning:
- Release of Information for Federal Trust Land Records
- Release of Information for Federal Trust Personalty
- Federal Affidavit to Accompany an Indian Will
- Example of Client Interview Checklist
- The American Indian Probate Reform Act: A Five-Year Review- by Diane K. Lautt. Published in Washburn Law Journal, Volume 51, No.1 (Fall 2011)
- The Changing Landscape of Indian Estate Planning and Probate - A comprehensive overview of the American Indian Probate Reform Act by Douglas Nash and Cecelia Burke. First published in the Seattle Journal for Social Justice 5 Seattle J. Soc. Jus. 121 (2007).
- Passing Title to Tribal Lands and the Federal Probate of Native American Estates by Douglas R. Nash and Cecelia E. Burke. This article provides a brief historical primer on trust lands and an overview of the American Indian Probate Reform Act's key provisions for the estate planning attorney. First published as Chapter 14 of the Washington State Bar Association's Real Property, Trust and Estates Section Mid Year Conference (2006).
- Events Leading to the American Indian Probate Reform Act A history of federal laws and policies leading to the creation of AIPRA by John C. Sledd, Attorney, Kanji & Katzen, PLLC
- Laws and Regulations Relating to Indians and their Lands compiled by Oscar H. Lipps, U.S. Indian Services (1930s)
The American Indian Probate Reform Act of 2004
Technical Amendment S. 3526
The Code of Federal Regulations Surname Draft dated July 17, 2008
Passing Title to Tribal Lands and the Federal Probate of Native American Estates
Intestate Rules for Interests Less than 5%
Intestate Rules for Interests 5% or greater
Intestate Rules for Trust Personalty
Estate Planning Options
Release of Information for Federal Trust Land Records
Release of Information for Federal Trust Personalty
Federal Affidavit to Accompany an Indian Will
Example of Client Interview Checklist
Events Leading to the American Indian Probate Reform Act
Laws and Regulations Relating to Indians and their Lands