Planning for the Future

This page emphasizes the importance of estate planning for Indian trust beneficiaries. Covered topics include:

• Estate Planning
• Hiring an Attorney
• Power of Attorney
• Probate and how it affects your loved ones

Estate Planning

All beneficiaries should have some form of an estate plan. An estate plan is a collection of legal documents like wills, powers of attorney, and trusts. These documents outline what happens to your assets after you die or become incapacitated. If you don’t have an estate plan or a will, the U.S. Government will determine your heirs and distribute your trust assets when you die. This process, known as “probate,” can take many years.

Some people can create an estate plan with minimal outside help. Others may wish to consult expert advisors like attorneys, financial planners, or accountants. Your local Fiduciary Trust Officer can answer questions about estate planning. Many of our offices have arrangements with legal service groups to assist with establishing wills. Contact your local Fiduciary Trust Officer for more information about these services. The Indian Land Tenure Foundation also offers information about estate planning.

Deceased Account Holders 

Family members of deceased IIM account holders should contact their agency as soon as possible to begin the probate process. This will ensure that future payments go to an Estate Account. Estate Accounts continue to receive income and earn interest until the probate process is complete. 

PROTIP: Your will needs to change as your family changes. Review it frequently.

Hiring an Attorney

Estate planning for people with Indian trust assets requires specialized knowledge. Here are some questions you can ask prospective attorneys to check their skills in this area:

• Have you ever represented Native Americans in estate planning with IIM accounts?
• Have you ever been involved in disputed Indian probate?
• How long have you practiced?
• What does AIPRA stand for? (see information about AIPRA below)

Power of Attorney

A power of attorney is a legal document that allows someone else to act on your behalf. This is a private, inexpensive way to appoint a substitute decision-maker, although it may involve help from a lawyer. If you don’t create a power of attorney in advance, a friend or family member might have to go to court to have a guardian appointed – a process can be lengthy and expensive.

You can name both a financial power of attorney (for decisions about money and property) and a medical power of attorney (for decisions about health care).

Probate and how it affects your loved ones

Probate is a legal process to determine the validity of a will and administer the estate of someone who dies without a will. The American Indian Probate Reform Act of 2004 (AIPRA) created Federal probate code to limit fractionation, keep land in the hands of a beneficiaries’ Indian children, and encourage the drafting of wills.

If you create a will, you can do almost anything you want with your property. If you don’t create a will, the following regulations will govern who inherits your estate:

• Your spouse gets a "life estate" and holds property until death, then it passes to your children.
• The land is inherited by children, grandchildren, parents, or siblings. If none exist, the land goes to the Tribe. Eligible heirs must be Indian or within two generations.
• If land is less than 5% of the tract, your spouse gets a life estate only if they live on the land, and it is inherited only by the oldest child or grandchild ("single heir rule", prevents fractionation). If none exist, it goes to the Tribe.
• The Federal government, Tribe and co-owners may purchase the land during probate. Consent of the heir is required, but if the interest is less than 5% and passes without a will, no consent is required unless the heirs live on the land.
• Your heirs may enter a consolidation agreement to avoid purchase without consent.

Note: AIPRA does not apply to trust or restricted property in Alaska, the Five Civilized Tribes, or the Osage Nation.

The Bureau of Indian Affairs offers a guide to the Department of the Interior’s probate process.