CALIFORNIA PROBATE CENTER

The Authority for Probate Litigation and Estate Planning in California

Indian Probate Lawyer Advice on Federal Probate and Tribal Probate

The American Indian Probate Reform Act (2004 version can be downloaded here, with technical amendments of 2005) now governs Indian probate law. The act was designed to remedy the application of state probate codes that did not take into account the needs of American Indians or their tribes. In fact, the application of the probate codes was an outright land grab by the United States government – because the General Allotment Act did not allow Indians the right to convey their property by will. This resulted in fractionalization of Indian ownership with the consequent loss of millions of acres of tribal land while the United States government (intentionally) did nothing.

Unfortunately, the Indian Probate Reform Act has created a host of new issues for individuals navigating the Act, and often places the needs of the tribes and the United States ahead of the needs of the individual Native American. For instance, if no will is executed the tribe may force a buyout of a percentage of the trust land. Because the tribes may have a competing interest in the land and property involved, Native Americans should be wary of both tribal and federal government intent in this area. Nonetheless, the American Indian Probate Reform Act gives powerful benefits to the Indian community as a whole as it sacrifices the rights of certain individuals.

The applicable probate law is incredibly complex due to the multiple statutory provisions implicated in the process. These can be found in the federal probate code, the California probate code, and local tribal probate codes (the Secretary of the Interior must approve tribal probate codes, and not many tribes have signed on to the process as of yet). The Federal probate law attempts to preempt all state probate codes as it relates to intestate (estates without a will) and testate (estates with a will) distributions that concern tribal real property. The California Probate Code and tribal law may still govern personal property. In order to preserve your interests, it is very important that every American Indian have a will or trust, otherwise your tribe may end up with all or some of your property – or it may be given to someone whom you did not intend. If a loved has passed away, it is important that you contact an experienced Indian probate lawyer right away to protect your rights.