Your Land, Your Decision

25 CFR 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. The Office of Hearings and Appeals (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.

The probate of trust or restricted land and trust funds uses legal terms such as “heirs” and “devisees.” For more information about the legal terms used in the probate process, please see the Probate Terms Glossary. 

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, Bureau of Trust Funds Administration (BTFA)
  • After the OHA judge or ADM issues the decision, and following any appeals, BTFA 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.

For more information on how to contact your regional Bureau of Indian Affairs agency probate office, Tribal Probate Program office, Bureau of Trust Funds Administration (BTFA), or Office of Hearings and Appeals (OHA), see Points of Contact for the Probate Process.

1. An American Indian or Alaska Native (AI/AN) passes away.
2. BIA receives notice of an AI/AN death from family members, friends, a newspaper, or a Tribe.
3. BIA agency or Tribal Probate Program verifies if the decedent possessed trust property at the time of death.
   • If the decedent did not own trustproperty, the BIA agency does not probate the decedent’s estate.
   • If the decedent owned trust property, the BIA agency or Tribal Probate Program requests documents from surviving family members.
4. Once all documents are received, the BIA agency or Tribal Probate Program prepares a probate package and forwards to OHA.
5. OHA reviews the probate package.
   • If documents are missing, OHA returns the probate package to the BIA for clarification or further documentation.
   • If documents are complete, OHA schedules and conducts a hearing or summary probate and issues a written decision or order.
6. For 30 days following the decision, adversely affected parties may request a rehearing or appeal.
   • If the decision is appealed, OHA will review and respond to the appeal.
   • If no appeals are made, BIA, LTRO will change the land title record in accordance with the final decision of the order.
7. BTFA will pay claims and distribute funds from the IIM account as appropriate, in accordance with the final decision or order.

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 BTFA. 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 BTFA will distribute the trust funds from the estate.

The following questions and answers are from the Code of Federal Regulations (CFR).

From 25 CFR 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.

From 25 CFR 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.

From 25 CFR 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. 

From 25 CFR 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 BTFA.

(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.)  

From 25 CFR 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.

From 25 CFR 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. 

From 25 CFR 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. 

From 25 CFR 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.

From 25 CFR 15.301:

(a) Before the probate case is submitted to OHA, you may request an amount of no more than $5,000 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 has an IIM account;

(2) You have not received sufficient funds from the decedent's Tribe to pay the entire cost of the funeral arrangements; and

(3) You have an immediate need to pay for funeral arrangements before burial.

(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) In response to a request submitted under paragraph (a) of this section, we may approve, without the need for an order from OHA, costs of no more than $5,000 from the date of death IIM account balance that are reasonable and necessary for the burial services, taking into consideration:

(1) The availability of non-trust funds, including availability of any Tribal contribution; and

(2) Any other relevant factors.

From 25 CFR 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.

From 43 CFR 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.

From 25 CFR 15.501:

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

From 43 CFR 30.114:

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

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

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

(c) Other interested parties identified by OHA.

From 43 CFR 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.  

From 43 CFR 30.200:

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

(b) A decedent's estate may be processed summarily if the estate involves only funds in an IIM account and the total value of the estate does not exceed $300 on the decedent's date of death, including:

(1) Funds deposited into the IIM account on or before the date of death; and

(2) Funds accrued on or before the date of death.

From 43 CFR 30.210: 

(a) You will receive personal notice of the formal probate proceeding hearing described in § 30.114 by first class mail that includes:

(1) The most recent will submitted with the probate case and any codicils to that will; and

(2) A certificate of mailing with the mailing date signed by the person who mailed the notice.

(b) The notice will be mailed to you at least 21 days before the date of the hearing.

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

From 43 CFR 30.211:

(a) In addition to the mailed notice in § 30.210, OHA will also arrange for the posting of notice of probate hearings for formal probate proceedings at least 21 days before the date of the hearing.

(b) The notice may contain information for more than one hearing and will specify the names of the decedents, the probate case numbers of the cases, the dates of the decedents' deaths, the dates of the most recent wills filed with the probate cases, and the dates, times, and places of the hearings.

(c) OHA will post the notice on its website at the following link: https://www.doi.gov/oha/organization/PHD

(d) The judge may also cause notice to be published in a local newspaper or other publication if the judge determines that additional notice is appropriate.

(e) Unless one of the circumstances listed in paragraph (f) of this section is present, OHA will also arrange for the physical posting of the notice in each of the following locations:

(1) The home agency;

(2) The agency with jurisdiction over each parcel of trust or restricted property in the estate, if different from the home agency;

(3) A conspicuous place in the vicinity of the designated place of hearing, if the hearing is designated for a location other than the agency listed in paragraph (e)(1) or (2) of this section; and

(4) Additional locations if the judge determines that further posting is appropriate.

(f) OHA may proceed with the hearing without physical posting of the notice at an agency office if the notice is posted in a conspicuous place near that agency office and physical posting at the agency office was not possible due to the agency office being closed or inaccessible.

From 43 CFR 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. 

From 43 CFR 30.225:

Yes. Testimony in a probate proceeding must be under oath or affirmation.

From 43 CFR 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.

From 25 CFR 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. 

From 43 CFR 30.238:

(a) A petition for rehearing seeking to correct a substantive error may be filed by the BIA or by an interested party who is adversely affected by the decision.

(b) A petition for rehearing must be filed with the judge within 30 days after the date on which the decision was mailed under § 30.237.

(c) A petition for rehearing must allege an error of fact or law in the decision and must state specifically and concisely the grounds on which the petition is based. The petition may be supported with newly discovered evidence or evidence that was not available at the time of the hearing.

(d) If you are an interested party and you received proper notice of the hearing:

(1) You, or BIA on your behalf, may raise an issue on rehearing only if you raised it at or before the hearing, whether or not you attended the hearing. Any issue you raise for the first time on rehearing may be denied solely because you failed to timely raise the issue; and

(2) You may only use evidence on rehearing that was submitted at or before the hearing, if that evidence was available or discoverable to you at that time. Any new evidence you submit on rehearing may be disregarded by the judge, if it was available or discoverable to you at the time the hearing was held.

(e) If the petition is based on newly discovered evidence or evidence that was unavailable at the time of the hearing, it must:

(1) Be accompanied by documentation of that evidence, including, but not limited to, one or more affidavits of a witness stating fully the content of the new evidence; and

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

(f) OHA will send to BIA a notice of receipt of a petition for rehearing as soon as practicable, ordering that the decedent's estate not be distributed during the pendency of the petition for rehearing. OHA will also forward a copy of the petition and any documents filed with the petition to the interested parties and affected agencies.

From 43 CFR 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.

From 43 CFR 30.129: 

(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.

From 43 CFR 30.243:

A closed probate case may be reopened if the decision or order issued in the probate case contains an error of fact or law (including, but not limited to, a missing or improperly included heir or devisee, a found will, or an error in the distribution of property), and the error is discovered more than 30 days after the mailing date of a decision.

(a) Any interested party or BIA may seek correction of the error of fact or law by filing a petition for reopening with the judge.

(b) Reopening may also be initiated on a judge's own motion.

From 43 CFR 30.244:

(a) A petition for reopening to correct an error of fact or law in a decision or post-decision order may be filed at any time, but if a petition for reopening is filed by an interested party, or by BIA on behalf of an interested party, it must be filed within 1 year after the interested party's discovery of the alleged error.

(b) If a petition for reopening to correct an error of fact or law in the original decision is filed before the deadline to file a petition for rehearing has passed, it will be treated as a petition for rehearing.

From 43 CFR 30.249:

(a) Copies of the judge's order on reopening must be mailed to the petitioner, the affected agencies, and all interested parties.

(b) The judge must submit the record made on a reopening petition to the designated LTRO.

(c) The order on reopening will become final on the expiration of the 30 days allowed for the filing of a notice of appeal, as provided in this part.

From 43 CFR 30.505:

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.