Planning for the Future

This page provides estate planning tips for beneficiaries to ensure that trust assets are distributed the way you want when you die. Covered topics include:

Estate Planning

Estate planning ensures that the care of your loved ones and the handling of your assets conform to your wishes if something happens to you. It allows you to determine who will make decisions on your behalf if you are incapacitated or otherwise unavailable. As part of your estate plan, you can also name who will care for your dependents and who will receive your assets.

All beneficiaries should have some form of an estate plan. If you don’t, Department of the Interior staff will determine the rightful heirs and distribute your trust assets among them in accordance with applicable laws. This process is called “probate” and can take several years before your heirs receive any money.

Estate plans typically include legal documents like wills, powers of attorney, and trusts. Your will needs to cover everything: not just your Indian trust assets. For some people, the process of creating an estate plan is straightforward and can be accomplished with minimal outside assistance. However, those with particularly unique situations may consider retaining the services of expert advisors like attorneys, financial planners, or accountants.

Your local Fiduciary Trust Officer can answer questions about estate planning. In addition, many regional offices have arrangements with local lawyers, law schools, and other legal services 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 remain open, receiving income and earning interest, until the probate process (which may take several years) is completed and assets are distributed in accordance to the probate officer. 

PROTIP: Wills change as your family changes and need to be reviewed annually.

Hiring an Attorney

Estate planning for people with Indian trust assets requires specialized knowledge about Native American law. Here are some questions you can ask prospective attorneys to evaluate 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 way to appoint a substitute decision-maker and is relatively inexpensive, 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 – and that process can be lengthy, expensive, and very public.

You can designate both a financial power of attorney (for decisions about money and property) and a medical power of attorney (for decisions about health care). These should be separate documents but can be designated to the same person or two different people.

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 how your estate is inherited:

  • 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 help American Indians & Alaska Natives understand the Department of the Interior’s probate process.

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