25 U.S.C. § 2206 : US Code - Section 2206: Descent and distribution

Search 25 U.S.C. § 2206 : US Code - Section 2206: Descent and distribution

(a) Nontestamentary disposition
(1) Rules of descent
Subject to any applicable Federal law relating to the devise or
descent of trust or restricted property, any trust or restricted
interest in land or interest in trust personalty that is not
disposed of by a valid will -
(A) shall descend according to an applicable tribal probate
code approved in accordance with section 2205 of this title; or
(B) in the case of a trust or restricted interest in land or
interest in trust personalty to which a tribal probate code
does not apply, shall descend in accordance with -
(i) paragraphs (2) through (5); and
(ii) other applicable Federal law.
(2) Rules governing descent of estate
(A) Surviving spouse
If there is a surviving spouse of the decedent, such spouse
shall receive trust and restricted land and trust personalty in
the estate as follows:
(i) If the decedent is survived by 1 or more eligible heirs
described in subparagraph (B)(i), (ii), (iii), or (iv), the
surviving spouse shall receive 1/3 of the trust personalty
of the decedent and a life estate without regard to waste in
the interests in trust or restricted lands of the decedent.
(ii) If there are no eligible heirs described in
subparagraph (B)(i), (ii), (iii), or (iv), the surviving
spouse shall receive all of the trust personalty of the
decedent and a life estate without regard to waste in the
trust or restricted lands of the decedent.
(iii) The remainder shall pass as set forth in subparagraph
(B).
(iv) Trust personalty passing to a surviving spouse under
the provisions of this subparagraph shall be maintained by
the Secretary in an account as trust personalty, but only if
such spouse is Indian.
(B) Individual and tribal heirs
Where there is no surviving spouse of the decedent, or there
is a remainder interest pursuant to subparagraph (A), the trust
or restricted estate or such remainder shall, subject to
subparagraphs (A) and (D), pass as follows:
(i) To those of the decedent's children who are eligible
heirs (or if 1 or more of such children do not survive the
decedent, the children of any such deceased child who are
eligible heirs, by right of representation, but only if such
children of the deceased child survive the decedent) in equal
shares.
(ii) If the property does not pass under clause (i), to
those of the decedent's surviving great-grandchildren who are
eligible heirs, in equal shares.
(iii) If the property does not pass under clause (i) or
(ii), to the decedent's surviving parent who is an eligible
heir, and if both parents survive the decedent and are both
eligible heirs, to both parents in equal shares.
(iv) If the property does not pass under clause (i), (ii),
or (iii), to those of the decedent's surviving siblings who
are eligible heirs, in equal shares.
(v) If the property does not pass under clause (i), (ii),
(iii), or (iv), to the Indian tribe with jurisdiction over
the interests in trust or restricted lands;
except that notwithstanding clause (v), an Indian co-owner
(including the Indian tribe referred to in clause (v)) of a
parcel of trust or restricted land may acquire an interest that
would otherwise descend under that clause by paying into the
estate of the decedent, before the close of the probate of the
estate, the fair market value of the interest in the land; if
more than 1 Indian co-owner offers to pay for such interest,
the highest bidder shall acquire the interest.
(C) No Indian tribe
(i) In general
If there is no Indian tribe with jurisdiction over the
interests in trust or restricted lands that would otherwise
descend under subparagraph (B)(v), then such interests shall
be divided equally among co-owners of trust or restricted
interests in the parcel; if there are no such co-owners, then
to the United States, provided that any such interests in
land passing to the United States under this subparagraph
shall be sold by the Secretary and the proceeds from such
sale deposited into the land acquisition fund established
under section 2215 of this title and used for the purposes
described in subsection (b) of that section.
(ii) Contiguous parcel
If the interests passing to the United States under this
subparagraph are in a parcel of land that is contiguous to
another parcel of trust or restricted land, the Secretary
shall give the owner or owners of the trust or restricted
interest in the contiguous parcel the first opportunity to
purchase the interest at not less than fair market value
determined in accordance with this chapter. If more than 1
such owner in the contiguous parcel request to purchase the
parcel, the Secretary shall sell the parcel by public auction
or sealed bid (as determined by the Secretary) at not less
than fair market value to the owner of a trust or restricted
interest in the contiguous parcel submitting the highest bid.
(D) Intestate descent of small fractional interests in land
(i) General rule
Notwithstanding subparagraphs (A) and (B), and subject to
any applicable Federal law, any trust or restricted interest
in land in the decedent's estate that is not disposed of by a
valid will and represents less than 5 percent of the entire
undivided ownership of the parcel of land of which such
interest is a part, as evidenced by the decedent's estate
inventory at the time of the heirship determination, shall
descend in accordance with clauses (ii) through (iv).
(ii) Surviving spouse
If there is a surviving spouse, and such spouse was
residing on a parcel of land described in clause (i) at the
time of the decedent's death, the spouse shall receive a life
estate without regard to waste in the decedent's trust or
restricted interest in only such parcel, and the remainder
interest in that parcel shall pass in accordance with clause
(iii).
(iii) Single heir rule
Where there is no life estate created under clause (ii) or
there is a remainder interest under that clause, the trust or
restricted interest or remainder interest that is subject to
this subparagraph shall descend, in trust or restricted
status, to -
(I) the decedent's surviving child, but only if such
child is an eligible heir; and if 2 or more surviving
children are eligible heirs, then to the oldest of such
children;
(II) if the interest does not pass under subclause (I),
the decedent's surviving grandchild, but only if such
grandchild is an eligible heir; and if 2 or more surviving
grandchildren are eligible heirs, then to the oldest of
such grandchildren;
(III) if the interest does not pass under subclause (I)
or (II), the decedent's surviving great grandchild, but
only if such great grandchild is an eligible heir; and if 2
or more surviving great grandchildren are eligible heirs,
then to the oldest of such great grandchildren;
(IV) if the interest does not pass under subclause (I),
(II), or (III), the Indian tribe with jurisdiction over the
interest; or
(V) if the interest does not pass under subclause (I),
(II), or (III), and there is no such Indian tribe to
inherit the property under subclause (IV), the interest
shall be divided equally among co-owners of trust or
restricted interests in the parcel; and if there are no
such co-owners, then to the United States, to be sold, and
the proceeds from sale used, in the same manner provided in
subparagraph (C).
The determination of which person is the oldest eligible heir
for inheritance purposes under this clause shall be made by the
Secretary in the decedent's probate proceeding and shall be
consistent with the provisions of this chapter.
(iv) Exceptions
Notwithstanding clause (iii) -
(I)(aa) the heir of an interest under this subparagraph,
unless the heir is a minor or incompetent person, may agree
in writing entered into the record of the decedent's
probate proceeding to renounce such interest, in trust or
restricted status, in favor of -
(AA) any other eligible heir or Indian person related
to the heir by blood, but in any case never in favor of
more than 1 such heir or person;
(BB) not more than 1 co-owner of another trust or
restricted interest in such parcel of land; or
(CC) the Indian tribe with jurisdiction over the
interest, if any; and
(bb) the Secretary shall give effect to such agreement in
the distribution of the interest in the probate proceeding;
and
(II) the governing body of the Indian tribe with
jurisdiction over an interest in trust or restricted land
that is subject to the provisions of this subparagraph may
adopt a rule of intestate descent applicable to such
interest that differs from the order of decedent set forth
in clause (iii). The Secretary shall apply such rule to the
interest in distributing the decedent's estate, but only if
-
(aa) a copy of the tribal rule is delivered to the
official designated by the Secretary to receive copies of
tribal rules for the purposes of this clause;
(bb) the tribal rule provides for the intestate
inheritance of such interest by no more than 1 heir, so
that the interest does not further fractionate;
(cc) the tribal rule does not apply to any interest
disposed of by a valid will;
(dd) the decedent died on or after the date described
in subsection (b) of section 8 of the American Indian
Probate (!1) Act of 2004, or on or after the date on
which a copy of the tribal rule was delivered to the
Secretary pursuant to item (aa), whichever is later; and
(ee) the Secretary does not make a determination within
90 days after a copy of the tribal rule is delivered
pursuant to item (aa) that the rule would be unreasonably
difficult to administer or does not conform with the
requirements in item (bb) or (cc).
(v) Rule of construction
This subparagraph shall not be construed to limit a
person's right to devise any trust or restricted interest by
way of a valid will in accordance with subsection (b) of this
section.
(3) Right of representation
If, under this subsection, all or any part of the estate of a
decedent is to pass to children of a deceased child by right of
representation, that part is to be divided into as many equal
shares as there are living children of the decedent and pre-
deceased children who left issue who survive the decedent. Each
living child of the decedent, if any, shall receive 1 share, and
the share of each pre-deceased child shall be divided equally
among the pre-deceased child's children.
(4) Special rule relating to survival
In the case of intestate succession under this subsection, if
an individual fails to survive the decedent by at least 120
hours, as established by clear and convincing evidence -
(A) the individual shall be deemed to have predeceased the
decedent for the purpose of intestate succession; and
(B) the heirs of the decedent shall be determined in
accordance with this section.
(5) Status of inherited interests
Except as provided in paragraphs (2)(A) and (D) regarding the
life estate of a surviving spouse, a trust or restricted interest
in land or trust personalty that descends under the provisions of
this subsection shall vest in the heir in the same trust or
restricted status as such interest was held immediately prior to
the decedent's death.
(b) Testamentary disposition
(1) General devise of an interest in trust or restricted land
(A) In general
Subject to any applicable Federal law relating to the devise
or descent of trust or restricted land, or a tribal probate
code approved by the Secretary in accordance with section 2205
of this title, the owner of a trust or restricted interest in
land may devise such interest to -
(i) any lineal descendant of the testator;
(ii) any person who owns a preexisting undivided trust or
restricted interest in the same parcel of land;
(iii) the Indian tribe with jurisdiction over the interest
in land; or
(iv) any Indian;
in trust or restricted status.
(B) Rules of interpretation
Any devise of a trust or restricted interest in land pursuant
to subparagraph (A) to an Indian or the Indian tribe with
jurisdiction over the interest shall be deemed to be a devise
of the interest in trust or restricted status. Any devise of a
trust or restricted interest in land to a person who is only
eligible to be a devisee under clause (i) or (ii) of
subparagraph (A) shall be presumed to be a devise of the
interest in trust or restricted status unless language in such
devise clearly evidences an intent on the part of the testator
that the interest is to pass as a life estate or fee interest
in accordance with paragraph (2)(A).
(2) Devise of trust or restricted land as a life estate or in fee
(A) In general
Except as provided under any applicable Federal law, any
trust or restricted interest in land that is not devised in
accordance with paragraph (1)(A) may be devised only -
(i) as a life estate to any person, with the remainder
being devised only in accordance with subparagraph (B) or
paragraph (1); or
(ii) except as provided in subparagraph (B), as a fee
interest without Federal restrictions against alienation to
any person who is not eligible to be a devisee under clause
(iv) of paragraph (1)(A).
(B) Indian reorganization act lands
Any interest in trust or restricted land that is subject to
section 464 of this title, may be devised only in accordance
with -
(i) that section;
(ii) subparagraph (A)(i); or
(iii) paragraph (1)(A);
provided that nothing in this section or in section 464 of this
title, shall be construed to authorize the devise of any
interest in trust or restricted land that is subject to section
464 of this title to any person as a fee interest under
subparagraph (A)(ii).
(3) General devise of an interest in trust personalty
(A) Trust personality (!2) defined
The term "trust personalty" as used in this section includes
all funds and securities of any kind which are held in trust in
an individual Indian money account or otherwise supervised by
the Secretary.
(B) In general
Subject to any applicable Federal law relating to the devise
or descent of such trust personalty, or a tribal probate code
approved by the Secretary in accordance with section 2205 of
this title, the owner of an interest in trust personalty may
devise such an interest to any person or entity.
(C) Maintenance as trust personalty
In the case of a devise of an interest in trust personalty to
a person or Indian tribe eligible to be a devisee under
paragraph (1)(A), the Secretary shall maintain and continue to
manage such interests as trust personalty.
(D) Direct disbursement and distribution
In the case of a devise of an interest in trust personalty to
a person or Indian tribe not eligible to be a devisee under
paragraph (1)(A), the Secretary shall directly disburse and
distribute such personalty to the devisee.
(4) Invalid devises and wills
(A) Land
Any trust or restricted interest in land that is not devised
in accordance with paragraph (1) or (2) or that is not disposed
of by a valid will shall descend in accordance with the
applicable law of intestate succession as provided for in
subsection (a) of this section.
(B) Personalty
Any trust personalty that is not disposed of by a valid will
shall descend in accordance with the applicable law of
intestate succession as provided for in subsection (a) of this
section.
(c) Joint tenancy; right of survivorship
(1) Presumption of joint tenancy
If a testator devises trust or restricted interests in the same
parcel of land to more than 1 person, in the absence of clear and
express language in the devise stating that the interest is to
pass to the devisees as tenants in common, the devise shall be
presumed to create a joint tenancy with the right of survivorship
in the interests involved.
(2) Exception
Paragraph (1) shall not apply to any devise of an interest in
trust or restricted land where the will in which such devise is
made was executed prior to the date that is 1 year after the date
on which the Secretary publishes the certification required by
section 8(a)(4) of the American Indian Probate Reform Act of
2004.
(d) Descent of off-reservation lands
(1) Indian reservation defined
For purposes of this subsection, the term "Indian reservation"
includes lands located within -
(A)(i) Oklahoma; and
(ii) the boundaries of an Indian tribe's former reservation
(as defined and determined by the Secretary);
(B) the boundaries of any Indian tribe's current or former
reservation; or
(C) any area where the Secretary is required to provide
special assistance or consideration of a tribe's acquisition of
land or interests in land.
(2) Descent
Except in the State of California, upon the death of an
individual holding an interest in trust or restricted lands that
are located outside the boundaries of an Indian reservation and
that are not subject to the jurisdiction of any Indian tribe,
that interest shall descend either -
(A) by testate or intestate succession in trust to an Indian;
or
(B) in fee status to any other devises or heirs.
(e) Approval of agreements
The official authorized to adjudicate the probate of trust or
restricted lands shall have the authority to approve agreements
between a decedent's heirs and devisees to consolidate interests in
trust or restricted lands. The agreements referred to in the
preceding sentence may include trust or restricted lands that are
not a part of the decedent's estate that is the subject of the
probate. The Secretary may promulgate regulations for the
implementation of this subsection.
(f) Estate planning assistance
(1) In general
(A) The activities conducted under this subsection shall be
conducted in accordance with any applicable -
(i) tribal probate code; or
(ii) tribal land consolidation plan.
(B) The Secretary shall provide estate planning assistance in
accordance with this subsection, to the extent amounts are
appropriated for such purpose.
(2) Requirements
The estate planning assistance provided under paragraph (1)
shall be designed to -
(A) inform, advise, and assist Indian landowners with respect
to estate planning in order to facilitate the transfer of trust
or restricted lands to a devisee or devisees selected by the
landowners;
(B) dramatically increase the use of wills and other methods
of devise among Indian landowners;
(C) substantially reduce the quantity and complexity of
Indian estates that pass intestate through the probate process,
while protecting the rights and interests of Indian landowners;
and
(D) assist Indian landowners in accessing information
pursuant to section 2216(e) of this title.
(3) Probate code development and legal assistance grants
In carrying out this section, the Secretary may award grants,
including noncompetitive grants, to -
(A) Indian tribes, for purposes of tribal probate code
development and estate planning services to tribal members;
(B) organizations that provide legal assistance services for
Indian tribes, Indian organizations, and individual owners of
interests in trust or restricted lands that are qualified as
nonprofit organizations under section 501(c)(3) of title 26 and
provide such services pursuant to Federal poverty guidelines,
for purposes of providing civil legal assistance to such Indian
tribes, individual owners, and Indian organizations for the
development of tribal probate codes, for estate planning
services or for other purposes consistent with the services
they provide to Indians and Indian tribes; and
(C) in specific areas and reservations where qualified
nonprofit organizations referred to in subparagraph (B) do not
provide such legal assistance to Indian tribes, Indian
organizations, or individual owners of trust or restricted
land, to other providers of such legal assistance;
that submit an application to the Secretary, in such form and
manner as the Secretary may prescribe.
(4) Authorization for appropriations
There is authorized to be appropriated such sums as may be
necessary to carry out the provisions of paragraph (3).
(g) Applicable Federal law
(1) In general
Any references in subsections (a) and (b) of this section to
applicable Federal law include -
(A) Public Law 91-627 (84 Stat. 1874);
(B) Public Law 92-377 (86 Stat. 530);
(C) Public Law 92-443 (86 Stat. 744);
(D) Public Law 96-274 (94 Stat. 537); and
(E) Public Law 98-513 (98 Stat. 2411).
(2) No effect on laws
Nothing in this chapter amends or otherwise affects the
application of any law described in paragraph (1), or any other
Federal law that pertains specifically to -
(A) trust or restricted land located on 1 or more specific
Indian reservations that are expressly identified in such law;
or
(B) the allotted land (or any interest relating to such land)
of 1 or more specific Indian tribes expressly identified in
Federal law, including any of the Federal laws governing the
probate or determination of heirs associated with, or otherwise
relating to, the land, interest in land, or other interests or
assets that are owned by individuals in -
(i) Five Civilized Tribes restricted fee status; or
(ii) Osage Tribe restricted fee status.
(3) Effect of subsection
Except to the extent that this chapter otherwise affects the
application of a Federal law described in paragraph (2), nothing
in this subsection limits the application of this chapter to
trust or restricted land, interests in such land, or any other
trust or restricted interests or assets.
(h) Rules of interpretation
In the absence of a contrary intent, and except as otherwise
provided under this chapter, applicable Federal law, or a tribal
probate code approved by the Secretary pursuant to section 2205 of
this title, wills shall be construed as to trust and restricted
land and trust personalty in accordance with the following rules:
(1) Construction that will passes all property
A will shall be construed to apply to all trust and restricted
land and trust personalty which the testator owned at his death,
including any such land or personalty acquired after the
execution of his will.
(2) Class gifts
(A) No differentiation between relationship by blood and
relationship by affinity
Terms of relationship that do not differentiate relationships
by blood from those by affinity, such as "uncles", "aunts",
"nieces", or "nephews", are construed to exclude relatives by
affinity. Terms of relationship that do not differentiate
relationships by the half blood from those by the whole blood,
such as "brothers", "sisters", "nieces", or "nephews", are
construed to include both types of relationships.
(B) Meaning of "heirs" and "next of kin", etc.; time of
ascertaining class
A devise of trust or restricted interest in land or an
interest in trust personalty to the testator's or another
designated person's "heirs", "next of kin", "relatives", or
"family" shall mean those persons, including the spouse, who
would be entitled to take under the provisions of this chapter
for nontestamentary disposition. The class is to be ascertained
as of the date of the testator's death.
(C) Time for ascertaining class
In construing a devise to a class other than a class
described in subparagraph (B), the class shall be ascertained
as of the time the devise is to take effect in enjoyment. The
surviving issue of any member of the class who is then dead
shall take by right of representation the share which their
deceased ancestor would have taken.
(3) Meaning of "die without issue" and similar phrases
In any devise under this chapter,(!3) the words "die without
issue", "die without leaving issue", "have no issue", or words of
a similar import shall be construed to mean that an individual
had no lineal descendants in his lifetime or at his death, and
not that there will be no lineal descendants at some future time.
(4) Persons born out of wedlock
In construing provisions of this chapter (!3) relating to
lapsed and void devises, and in construing a devise to a person
or persons described by relationship to the testator or to
another, a person born out of wedlock shall be considered the
child of the natural mother and also of the natural father.
(5) Lapsed devises
Subject to the provisions of subsection (b) of this section,
where the testator devises or bequeaths a trust or restricted
interest in land or trust personalty to the testator's
grandparents or to the lineal descendent of a grandparent, and
the devisee or legatee dies before the testator leaving lineal
descendents, such descendents shall take the interest so devised
or bequeathed per stirpes.
(6) Void devises
Except as provided in paragraph (5), and if the disposition
shall not be otherwise expressly provided for by a tribal probate
code approved under section 2205 of this title, if a devise other
than a residuary devise of a trust or restricted interest in land
or trust personalty fails for any reason, such interest shall
become part of the residue and pass, subject to the provisions of
subsection (b) of this section, to the other residuary devisees,
if any, in proportion to their respective shares or interests in
the residue.
(7) Family cemetery plot
If a family cemetery plot owned by the testator in trust or
restricted status at his decease is not mentioned in the
decedent's will, the ownership of the plot shall descend to his
heirs as if he had died intestate.
(i) Heirship by killing
(1) Heir by killing defined
As used in this subsection, "heir by killing" means any person
who knowingly participates, either as a principal or as an
accessory before the fact, in the willful and unlawful killing of
the decedent.
(2) No acquisition of property by killing
Subject to any applicable Federal law relating to the devise or
descent of trust or restricted land, no heir by killing shall in
any way acquire any trust or restricted interests in land or
interests in trust personalty as the result of the death of the
decedent, but such property shall pass in accordance with this
subsection.
(3) Descent, distribution, and right of survivorship
The heir by killing shall be deemed to have predeceased the
decedent as to decedent's trust or restricted interests in land
or trust personalty which would have passed from the decedent or
his estate to such heir -
(A) under intestate succession under this section;
(B) under a tribal probate code, unless otherwise provided
for;
(C) as the surviving spouse;
(D) by devise;
(E) as a reversion or a vested remainder;
(F) as a survivorship interest; and
(G) as a contingent remainder or executory or other future
interest.
(4) Joint tenants, joint owners, and joint obligees
(A) Any trust or restricted land or trust personalty held by
only the heir by killing and the decedent as joint tenants, joint
owners, or joint obligees shall pass upon the death of the
decedent to his or her estate, as if the heir by killing had
predeceased the decedent.
(B) As to trust or restricted land or trust personalty held
jointly by 3 or more persons, including both the heir by killing
and the decedent, any income which would have accrued to the heir
by killing as a result of the death of the decedent shall pass to
the estate of the decedent as if the heir by killing had
predeceased the decedent and any surviving joint tenants.
(C) Notwithstanding any other provision of this subsection, the
decedent's trust or restricted interest land or trust personalty
that is held in a joint tenancy with the right of survivorship
shall be severed from the joint tenancy as though the property
held in the joint tenancy were to be severed and distributed
equally among the joint tenants and the decedent's interest shall
pass to his estate; the remainder of the interests shall remain
in joint tenancy with right of survivorship among the surviving
joint tenants.
(5) Life estate for the life of another
If the estate is held by a third person whose possession
expires upon the death of the decedent, it shall remain in such
person's hands for the period of time following the decedent's
death equal to the life expectancy of the decedent but for the
killing.
(6) Preadjudication rule
(A) In general
If a person has been charged, whether by indictment,
information, or otherwise by the United States, a tribe, or any
State, with voluntary manslaughter or homicide in connection
with a decedent's death, then any and all trust or restricted
land or trust personalty that would otherwise pass to that
person from the decedent's estate shall not pass or be
distributed by the Secretary until the charges have been
resolved in accordance with the provisions of this paragraph.
(B) Dismissal or withdrawal
Upon dismissal or withdrawal of the charge, or upon a verdict
of not guilty, such land and personalty shall pass as if no
charge had been filed or made.
(C) Conviction
Upon conviction of such person, and the exhaustion of all
appeals, if any, the trust and restricted land and trust
personalty in the estate shall pass in accordance with this
subsection.
(7) Broad construction; policy of subsection
This subsection shall not be considered penal in nature, but
shall be construed broadly in order to effect the policy that no
person shall be allowed to profit by his own wrong, wherever
committed.
(j) General rules governing probate
(1) Scope
Except as provided under applicable Federal law or a tribal
probate code approved under section 2205 of this title, the
provisions of this subsection shall govern the probate of estates
containing trust and restricted interests in land or trust
personalty.
(2) Pretermitted spouses and children
(A) Spouses
(i) In general
Except as provided in clause (ii), if the surviving spouse
of a testator married the testator after the testator
executed the will of the testator, the surviving spouse shall
receive the intestate share in the decedent's trust or
restricted land and trust personalty that the spouse would
have received if the testator had died intestate.
(ii) Exception
Clause (i) shall not apply to a trust or restricted
interest land where -
(I) the will of a testator is executed before the date
that is 1 year after the date on which the Secretary
publishes a notice of certification under section 8(a)(4)
of the American Indian Probate Reform Act of 2004 (25
U.S.C. 2201 note; Public Law 108-374);
(II)(aa) the spouse of a testator is a non-Indian; and
(bb) the testator devised the interests in trust or
restricted land of the testator to 1 or more Indians;
(III) it appears, based on an examination of the will or
other evidence, that the will was made in contemplation of
the marriage of the testator to the surviving spouse;
(IV) the will expresses the intention that the will is to
be effective notwithstanding any subsequent marriage; or
(V)(aa) the testator provided for the spouse by a
transfer of funds or property outside the will; and
(bb) an intent that the transfer be in lieu of a
testamentary provision is demonstrated by statements of the
testator or through a reasonable inference based on the
amount of the transfer or other evidence.
(iii) Spouses married at the time of the will
Should the surviving spouse of the testator be omitted from
the will of the testator, the surviving spouse shall be
treated, for purposes of trust or restricted land or trust
personalty in the testator's estate, in accordance with
subsection (a)(2)(A) of this section, as though there was no
will but only if -
(I) the testator and surviving spouse were continuously
married without legal separation for the 5-year period
preceding the decedent's death;
(II) the testator and surviving spouse have a surviving
child who is the child of the testator;
(III) the surviving spouse has made substantial payments
toward the purchase of, or improvements to, the trust or
restricted land in such estate; or
(IV) the surviving spouse is under a binding obligation
to continue making loan payments for the trust or
restricted land for a substantial period of time;
except that, if there is evidence that the testator
adequately provided for the surviving spouse and any minor
children by a transfer of funds or property outside of the
will, this clause shall not apply.
(B) Children
(i) In general
If a testator executed the will of the testator before the
birth or adoption of 1 or more children of the testator, and
the omission of the children from the will is a product of
inadvertence rather than an intentional omission, the
children shall share in the trust or restricted interests in
land and trust personalty as if the decedent had died
intestate.
(ii) Adopted heirs
Any person recognized as an heir by virtue of adoption
under the Act of July 8, 1940 (25 U.S.C. 372a), shall be
treated as the child of a decedent under this subsection.
(iii) Adopted-out children
(I) In general
For purposes of this chapter, an adopted person shall not
be considered the child or issue of his natural parents,
except in distributing the estate of a natural kin, other
than the natural parent, who has maintained a family
relationship with the adopted person. If a natural parent
shall have married the adopting parent, the adopted person
for purposes of inheritance by, from and through him shall
also be considered the issue of such natural parent.
(II) Eligible heir pursuant to other Federal law or tribal
law
Notwithstanding the provisions of subparagraph
(B)(iii)(I), other Federal laws and laws of the Indian
tribe with jurisdiction over the trust or restricted
interest in land may otherwise define the inheritance
rights of adopted-out children.
(3) Divorce
(A) Surviving spouse
(i) In general
An individual who is divorced from a decedent, or whose
marriage to the decedent has been annulled, shall not be
considered to be a surviving spouse unless, by virtue of a
subsequent marriage, the individual is married to the
decedent at the time of death of the decedent.
(ii) Separation
A decree of separation that does not dissolve a marriage,
and terminate the status of husband and wife, shall not be
considered a divorce for the purpose of this subsection.
(iii) No effect on adjudications
Nothing in clause (i) shall prevent the Secretary from
giving effect to a property right settlement relating to a
trust or restricted interest in land or an interest in trust
personalty if 1 of the parties to the settlement dies before
the issuance of a final decree dissolving the marriage of the
parties to the property settlement.
(B) Effect of subsequent divorce on a will or devise
(i) In general
If, after executing a will, a testator is divorced or the
marriage of the testator is annulled, as of the effective
date of the divorce or annulment, any disposition of trust or
restricted interests in land or of trust personalty made by
the will to the former spouse of the testator shall be
considered to be revoked unless the will expressly provides
otherwise.
(ii) Property
Property that is prevented from passing to a former spouse
of a decedent under clause (i) shall pass as if the former
spouse failed to survive the decedent.
(iii) Provisions of wills
Any provision of a will that is considered to be revoked
solely by operation of this subparagraph shall be revived by
the remarriage of a testator to the former spouse of the
testator.
(4) After-born heirs
A child in gestation at the time of decedent's death will be
treated as having survived the decedent if the child lives at
least 120 hours after its birth.
(5) Advancements of trust personalty during lifetime; effect on
distribution of estate
(A) The trust personalty of a decedent who dies intestate as to
all or a portion of his or her estate, given during the
decedent's lifetime to a person eligible to be an heir of the
decedent under subsection (b)(2)(B) of this section, shall be
treated as an advancement against the heir's inheritance, but
only if the decedent declared in a contemporaneous writing, or
the heir acknowledged in writing, that the gift is an advancement
or is to be taken into account in computing the division and
distribution of the decedent's intestate estate.
(B) For the purposes of this section, trust personalty advanced
during the decedent's lifetime is valued as of the time the heir
came into possession or enjoyment of the property or as of the
time of the decedent's death, whichever occurs first.
(C) If the recipient of the trust personalty predeceases the
decedent, the property shall not be treated as an advancement or
taken into account in computing the division and distribution of
the decedent's intestate estate unless the decedent's
contemporaneous writing provides otherwise.
(6) Heirs related to decedent through 2 lines; single share
A person who is related to the decedent through 2 lines of
relationship is entitled to only a single share of the trust or
restricted land or trust personalty in the decedent's estate
based on the relationship that would entitle such person to the
larger share.
(7) Notice
(A) In general
To the maximum extent practicable, the Secretary shall notify
each owner of trust and restricted land of the provisions of
this chapter.
(B) Combined notices
The notice under subparagraph (A) may, at the discretion of
the Secretary, be provided with the notice required under
subsection (a) of section 8 of the American Indian Probate
Reform Act of 2004.
(8) Renunciation or disclaimer of interests
(A) In general
Any person 18 years of age or older may renounce or disclaim
an inheritance of a trust or restricted interest in land or in
trust personalty through intestate succession or devise, either
in full or subject to the reservation of a life estate (where
the interest is an interest in land), in accordance with
subparagraph (B), by filing a signed and acknowledged
declaration with the probate decisionmaker prior to entry of a
final probate order. No interest so renounced or disclaimed
shall be considered to have vested in the renouncing or
disclaiming heir or devisee, and the renunciation or disclaimer
shall not be considered to be a transfer or gift of the
renounced or disclaimed interest.
(B) Eligible recipients of renounced or disclaimed interests;
notice to recipients
(i) Interests in land
A trust or restricted interest in land may be renounced or
disclaimed only in favor of -
(I) an eligible heir;
(II) any person who would have been eligible to be a
devisee of the interest in question pursuant to subsection
(b)(1)(A) of this section (but only in cases where the
renouncing person is a devisee of the interest under a
valid will); or
(III) the Indian tribe with jurisdiction over the
interest in question;
and the interest so renounced shall pass to its recipient in
trust or restricted status.
(ii) Trust personalty
An interest in trust personalty may be renounced or
disclaimed in favor of any person who would be eligible to be
a devisee of such an interest under subsection (b)(3) of this
section and shall pass to the recipient in accordance with
the provisions of that subsection.
(iii) Unauthorized renunciations and disclaimers
Unless renounced or disclaimed in favor of a person or
Indian tribe eligible to receive the interest in accordance
with the provisions of this subparagraph, a renounced or
disclaimed interest shall pass as if the renunciation or
disclaimer had not been made.
(C) Acceptance of interest
A renunciation or disclaimer of an interest filed in
accordance with this paragraph shall be considered accepted
when implemented in a final order by a decisionmaker, and shall
thereafter be irrevocable. No renunciation or disclaimer of an
interest shall be included in such order unless the recipient
of the interest has been given notice of the renunciation or
disclaimer and has not refused to accept the interest. All
disclaimers and renunciations filed and implemented in probate
orders made effective prior to October 27, 2004, are hereby
ratified.
(D) Rule of construction
Nothing in this paragraph shall be construed to allow the
renunciation of an interest that is subject to subsection
(a)(2)(D) of this section in favor of more than 1 person.
(9) Consolidation agreements
(A) In general
During the pendency of probate, the decisionmaker is
authorized to approve written consolidation agreements
effecting exchanges or gifts voluntarily entered into between
the decedent's eligible heirs or devisees, to consolidate
interests in any tract of land included in the decedent's trust
inventory. Such agreements may provide for the conveyance of
interests already owned by such heirs or devisees in such
tracts, without having to comply with the Secretary's rules and
requirements otherwise applicable to conveyances by deed of
trust or restricted interests in land.
(B) Effective
An agreement approved under subparagraph (A) shall be
considered final when implemented in an order by a
decisionmaker. The final probate order shall direct any changes
necessary to the Secretary's land records, to reflect and
implement the terms of the approved agreement.
(C) Effect on purchase option at probate
Any interest in trust or restricted land that is subject to a
consolidation agreement under this paragraph or subsection (e)
of this section shall not be available for purchase under
subsection (o) of this section unless the decisionmaker
determines that the agreement should not be approved.
(k) Notification to landowners
After receiving written request by any owner of a trust or
restricted interest in land, the Secretary shall provide to such
landowner the following information with respect to each tract of
trust or restricted land in which the landowner has an interest:
(1) The location of the tract of land involved.
(2) The identity of each other co-owner of interests in the
parcel of land.
(3) The percentage of ownership of each owner of an interest in
the tract.
(l) Pilot project for the management of trust assets of Indian
families and relatives
(1) Development pilot project
The Secretary shall consult with tribes, individual landowner
organizations, Indian advocacy organizations, and other
interested parties to -
(A) develop a pilot project for the creation of legal
entities such as private or family trusts, partnerships
corporations, or other organizations to improve, facilitate,
and assist in the efficient management of interests in trust or
restricted lands or funds owned by Indian family members and
relatives; and
(B) develop proposed rules, regulations, and guidelines to
implement the pilot project, including -
(i) the criteria for establishing such legal entities;
(ii) reporting and other requirements that the Secretary
determines to be appropriate for administering such entities;
and
(iii) provisions for suspending or revoking the authority
of an entity to engage in activities relating to the
management of trust or restricted assets under the pilot
project in order to protect the interests of the beneficial
owners of such assets.
(2) Primary purposes; limitation; approval of transactions;
payments by Secretary
(A) Purposes
The primary purpose of any entity organized under the pilot
project shall be to improve, facilitate, and assist in the
management of interests in trust or restricted land, held by 1
or more persons, in furtherance of the purposes of this
chapter.
(B) Limitation
The organization or activities of any entity under the pilot
project shall not be construed to impair, impede, replace,
abrogate, or modify in any respect the trust duties or
responsibilities of the Secretary, nor shall anything in this
subsection or in any rules, regulations, or guidelines
developed under this subsection enable any private or family
trustee of trust or restricted interests in land to exercise
any powers over such interests greater than that held by the
Secretary with respect to such interests.
(C) Secretarial approval of transactions
Any transaction involving the lease, use, mortgage or other
disposition of trust or restricted land or other trust assets
administered by or through an entity under the pilot project
shall be subject to approval by the Secretary in accordance
with applicable Federal law.
(D) Payments
The Secretary shall have the authority to make payments of
income and revenues derived from trust or restricted land or
other trust assets administered by or through an entity
participating in the pilot project directly to the entity, in
accordance with requirements of the regulations adopted
pursuant to this subsection.
(3) Limitations on pilot project
(A) Number of organizations
The number of entities established under the pilot project
authorized by this subsection shall not exceed 30.
(B) Regulations required
No entity shall commence activities under the pilot project
authorized by this subsection until the Secretary has adopted
final rules and regulations under paragraph (1)(B).
(4) Report to Congress
Prior to the expiration of the pilot project provided for under
this subsection, the Secretary shall submit a report to Congress
stating -
(A) a description of the Secretary's consultation with Indian
tribes, individual landowner associations, Indian advocacy
organizations, and other parties consulted with regarding the
development of rules and regulations for the creation and
management of interests in trust and restricted lands under the
pilot project;
(B) the feasibility of accurately monitoring the performance
of legal entities such as those involved in the pilot project,
and the effectiveness of such entities as mechanisms to manage
and protect trust assets;
(C) the impact that the use of entities such as those in the
pilot project may have with respect to the accomplishment of
the goals of this chapter; and
(D) any recommendations that the Secretary may have regarding
whether to adopt a permanent program as a management and
consolidation measure for interests in trust or restricted
lands.
(m) Notice to heirs
Prior to holding a hearing to determine the heirs to trust or
restricted property, or making a decision determining such heirs,
the Secretary shall seek to provide actual written notice of the
proceedings to all heirs. Such efforts shall include -
(1) a search of publicly available records and Federal records,
including telephone and address directories and including
electronic search services or directories;
(2) an inquiry with family members and co-heirs of the
property;
(3) an inquiry with the tribal government of which the owner is
a member, and the tribal government with jurisdiction over the
property, if any; and
(4) if the property is of a value greater than $2,000, engaging
the services of an independent firm to conduct a missing persons
search.
(n) Missing heirs
(1) For purposes of this subsection and subsection (m) of this
section, an heir may be presumed missing if -
(A) such heir's whereabouts remain unknown 60 days after
completion of notice efforts under subsection (m) of this
section; and
(B) in the proceeding to determine a decedent's heirs, the
Secretary finds that the heir has had no contact with other heirs
of the decedent, if any, or with the Department relating to trust
or restricted land or other trust assets at any time during the 6-
year period preceding the hearing to determine heirs.
(2) Before the date for declaring an heir missing, any person may
request an extension of time to locate such heir. The Secretary
shall grant a reasonable extension of time for good cause.
(3) An heir shall be declared missing only after a review of the
efforts made in the heirship proceeding and a finding has been made
that this subsection has been complied with.
(4) An heir determined to be missing pursuant to this subsection
shall be deemed to have predeceased the decedent for purposes of
descent and devise of trust or restricted land and trust personalty
within that decedent's estate.
(o) Purchase option at probate
(1) In general
The trust or restricted interests in a parcel of land in the
decedent's estate may be purchased at probate in accordance with
the provisions of this subsection.
(2) Sale of interest at fair market value
Subject to paragraph (3), the Secretary is authorized to sell
trust or restricted interests in land subject to this subsection,
including the interest that a surviving spouse would otherwise
receive under subparagraph (A) or (D) of subsection (a)(2) of
this section, at no less than fair market value, as determined in
accordance with the provisions of this chapter, to any of the
following eligible purchasers:
(A) Any other eligible heir taking an interest in the same
parcel of land by intestate succession or the decedent's other
devisees of interests in the same parcel who are eligible to
receive a devise under subsection (b)(1)(A) of this section.
(B) All persons who own undivided trust or restricted
interests in the same parcel of land involved in the probate
proceeding.
(C) The Indian tribe with jurisdiction over the interest, or
the Secretary on behalf of such Indian tribe.
(3) Request to purchase; auction; consent requirements
No sale of an interest in probate shall occur under this
subsection unless -
(A) an eligible purchaser described in paragraph (2) submits
a written request to purchase prior to the distribution of the
interest to heirs or devisees of the decedent and in accordance
with any regulations of the Secretary; and
(B) except as provided in paragraph (5), the heirs or
devisees of such interest, and the decedent's surviving spouse,
if any, receiving a life estate under subparagraph (A) or (D)
of subsection (a)(2) of this section consent to the sale.
If the Secretary receives more than 1 request to purchase the
same interest, the Secretary shall sell the interest by public
auction or sealed bid (as determined by the Secretary) at not
less than the appraised fair market value to the eligible
purchaser submitting the highest bid.
(4) Appraisal and notice
Prior to the sale of an interest pursuant to this subsection,
the Secretary shall -
(A) appraise the interest at its fair market value in
accordance with this chapter;
(B) provide eligible heirs, other devisees, and the Indian
tribe with jurisdiction over the interest with written notice,
sent by first class mail, that the interest is available for
purchase in accordance with this subsection; and
(C) if the Secretary receives more than 1 request to purchase
the interest by a person described in subparagraph (B), provide
notice of the manner (auction or sealed bid), time and place of
the sale, a description, and the appraised fair market value,
of the interest to be sold -
(i) to the heirs or other devisees and the Indian tribe
with jurisdiction over the interest, by first class mail; and
(ii) to all other eligible purchasers, by posting written
notice in at least 5 conspicuous places in the vicinity of
the place of hearing.
(5) Small undivided interests in Indian lands
(A) In general
Subject to subparagraph (B), the consent of a person who is
an heir otherwise required under paragraph (3)(B) shall not be
required for the auction and sale of an interest at probate
under this subsection if -
(i) the interest is passing by intestate succession; and
(ii) prior to the auction the Secretary determines in the
probate proceeding that the interest passing to such heir
represents less than 5 percent of the entire undivided
ownership of the parcel of land as evidenced by the
Secretary's records as of the time the determination is made.
(B) Exception
Notwithstanding subparagraph (A), the consent of such heir
shall be required for the sale at probate of the heir's
interest if, at the time of the decedent's death, the heir was
residing on the parcel of land of which the interest to be sold
was a part.
(6) Distribution of proceeds
(A) In general
Proceeds from the sale of interests under this subsection
shall be distributed to the heirs, devisees, or spouse whose
interest was sold in accordance with the values of their
respective interests.
(B) Holding in trust
Proceeds described in subparagraph (A) shall be deposited and
held in an account as trust personalty if the interest sold
would otherwise pass to -
(i) the heir, by intestate succession under subsection (a)
of this section; or
(ii) the devisee in trust or restricted status under
subsection (b)(1) of this section.