Model Tribal Probate Code, Guidance for Submission of Tribal Probate Codes Under 25 U.S.C. Section 2205, 54674-54679 [E7-19103]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 72, Number 186 (Wednesday, September 26, 2007)]
[Notices]
[Pages 54674-54679]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19103]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Model Tribal Probate Code, Guidance for Submission of Tribal 
Probate Codes Under 25 U.S.C. Section 2205

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: The Bureau of Indian Affairs (BIA) is announcing the 
availability of a Model Tribal Probate Code with comments entitled 
``Model Tribal Probate Code.'' BIA issues notices to inform tribes, 
Indians, and other interested persons about important policies, 
procedures, and related decisions, and these notices serve to provide 
guidance to tribes and BIA personnel. This notice provides guidance to 
tribes considering the creation and adoption of a Tribal Probate Code 
containing provisions applicable to trust and restricted property and 
includes a copy of the ``Model Probate Code with Comments.''

FOR FURTHER INFORMATION CONTACT: Eufrona Snyder, Office of Trust 
Services, Bureau of Indian Affairs, Department of the Interior, 1849 C 
Street, NW., Mailstop 4620-MIB, Washington, DC 20240; telephone number: 
(202) 208-5831; fax number: (202) 208-2549.

SUPPLEMENTARY INFORMATION:

I. General Information

 a. Does This Action Apply to Me?

    This action is directed to federally recognized tribes and the 
public in general. Since other persons may also be interested, the 
Agency has not attempted to describe all the specific entities that may 
be affected by this action. If you have any questions regarding the 
information in this notice, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

b. How Can I Get Copies of This Document and Other Related Information?

    Please contact the person listed under FOR FURTHER INFORMATION 
CONTACT who will arrange for a copy to be sent to you.

c. Is There a Comment Period for This Notice and to Whom Do I Send 
Comments?

    The comment period for the ``Model Tribal Probate Code with 
Comments'' will open on the date of publication of this notice and last 
for twenty (20) days. Comments can be directed to the person listed 
under FOR FURTHER INFORMATION CONTACT.

II. What Guidance Does This Notice Provide?

    The Model Tribal Probate Code is intended to serve as suggested 
guidelines for Tribes considering the creation and adoption of a Tribal 
Probate Code containing provisions applicable to trust and restricted 
property. The Model Tribal Probate Code is not binding on tribes and is 
not a rulemaking. The Model Tribal Probate Code sets forth the Bureau 
of Indian Affairs (BIA) policy and interpretation of the American 
Indian Probate Reform Act of 2004 (AIPRA) as it relates to the creation 
and approval of Tribal Probate Codes. After the Department reviewed 
several Tribal Probate Codes that contained provisions contrary to 
AIPRA, the Department of the Interior (Department) decided to draft a 
Model Tribal Probate Code. The Department may revise the Model Tribal 
Code from time to time based on further experience.
    The underlying purposes and policies of this code are: (1) To 
clarify the provisions of the American Indian Probate Reform Act of 
2004 (AIPRA) relating to the creation and adoption of Tribal Probate 
Codes under 25 U.S.C. 2205; (2) to promote an efficient system for 
Tribes to determine the descent and distribution of the decedent's 
trust and non trust estates; (3) to facilitate use and enforcement of 
Tribal Probate Codes.
    The Model Tribal Probate Code is only intended to address trust and 
restricted lands. The Department does not have jurisdiction over non 
trust or non restricted assets. Those provisions are within the sole 
authority of the Tribe, subject to its constitution. Tribes may have 
provisions for non trust assets that greatly differ from those 
provisions concerning trust assets. The Department recommends that 
Tribal Probate Codes delineate which provisions apply to trust and non 
trust assets.

III. Does This Notice Contain Binding Requirements?

    No, the Model Tribal Probate Code is intended to serve as suggested 
guidance for Tribes formulating Tribal Probate Codes that contain 
provisions applicable to trust and restricted assets.

    Dated: July 31, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.

MODEL TRIBAL PROBATE CODE (With comments and suggested guidelines)

Table of Contents

ARTICLE I. GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION

PART 1. GENERAL PROVISIONS

Section
    1-100 Evidence of Death or Status.

PART 2. DEFINITIONS

Section
    1-200 General Definitions.

PART 3. SCOPE, JURISDICTION AND COURTS

Section
    1-300 Subject Matter Jurisdiction.
    1-301 Application of Tribal Probate Codes.
    1-302 Appeals.

PART 4. REQUIREMENTS FOR TRIBAL PROBATE CODES

Section
    1-400 Submission of Tribal Probate Code to the Secretary of the 
Interior.

ARTICLE II. INTESTACY

PART 1. INTESTATE SUCCESSION

Section
    2-100 Intestate Estate.
    2-101 Share of Surviving Spouse.
    2-102 Intestate Succession.
    2-103 Intestate Descent of Small Fractional Interests in Land.
    2-104 Right of Representation.
    2-105 Requirement that Heir Survive Decedent for 120 Hours.

[[Page 54675]]

ARTICLE III. WILLS AND TESTAMENTARY DISPOSITION

PART 1. WILLS

Section
    3-100 Who May Make a Will.
    3-101 Requirements for Wills.

PART 2. TESTAMENTARY DISPOSITION

Section
    3-200 General Devise of an Interest in Trust or Restricted Land.
    3-201 Rules of Interpretation.
    3-202 Devise of Trust or Restricted Land as a Life Estate or in 
Fee.
    3-203 Invalid Devisees and Wills.
    3-204 Presumption of Joint-Tenancy.

ARTICLE IV. MISCELLANEOUS

PART 1

Section
    4-100 Amendments to Tribal Probate Codes.

Model Tribal Probate Code

Comment--Model Tribal Probate Code

    The Model Tribal Probate Code is intended to serve as suggested 
guidelines for Tribes considering the creation and adoption of a Tribal 
Probate Code containing provisions applicable to trust and restricted 
property. The Model Tribal Probate Code is not binding on Tribes and is 
not a rulemaking. The Model Tribal Probate Code sets forth the Bureau 
of Indian Affairs (BIA) policy and interpretation of the American 
Indian Probate Reform Act of 2004 (AIPRA) as it relates to the creation 
and approval of Tribal Probate Codes. After the Department reviewed 
several Tribal Probate Codes that contained provisions contrary to 
AIPRA; the Department decided to draft a Model Tribal Probate Code. The 
Department may revise the Model Tribal Code from time to time based on 
further experience.
    The underlying purposes and policies of this Code are: (1) To 
simplify and clarify the provisions of the American Indian Probate 
Reform Act of 2004 (AIRPA) relating to the creation and adoption of 
Tribal Probate Codes under 25 U.S.C. 2205; (2) to promote an efficient 
system for Tribes to determine the descent and distribution of the 
decedent's trust and non trust estates; and (3) to facilitate use and 
enforcement of Tribal Probate Codes.
    This Model Tribal Probate Code is only intended to address trust 
and restricted lands. The Department does not have jurisdiction over 
non trust or non restricted assets. Those provisions are within the 
sole authority of the Tribe, subject to its constitution. Tribes may 
have provisions for non trust assets that greatly differ from those for 
trust assets. The Department recommends delineating which provisions 
apply to trust and non trust assets. Any tribe that elects not to adopt 
the model code must ensure that its own code complies with AIPRA and 
accompanying DOI regulations.

ARTICLE I. GENERAL PROVISIONS, DEFINITIONS AND PROBATE JURISDICTION

PART 1. GENERAL PROVISIONS

Section
    1-100 Evidence of Death.

Section 1-100 Evidence of Death.

    In addition to the rules of evidence in courts of general 
jurisdiction, the following rules relating to a determination of death 
apply:
    (a) A certified copy of a death certificate is required to probate 
the estate of a trust or restricted landowner.
    (b) An individual whose death is not established under the 
preceding paragraphs who is absent for a continuous period of not less 
than six years, during which he has not been in contact with those who 
knew him, is presumed to be dead.

COMMENT--SECTION 1-100

    Paragraph (a) mandates that Tribes must require a certified death 
certificate for probate of a trust or restricted estate. The 
requirement in 25 CFR 15.101 may not be changed.
    Paragraph (b) allows Tribes to establish an alternate time period 
for a rebuttable presumption of death (other than the 6 years 
established in the proposed 43 CFR 30.124). Note that the language 
reads ``not less than.'' Tribes may increase the time period for the 
rebuttable presumption of death, but may not shorten the proposed 
regulatory time period.

PART 2. DEFINITIONS

Section
    1-200 General Definitions.

COMMENT--PART 2

    See 25 U.S.C. 2201. These suggested definitions relate to trust and 
restricted property. A Tribe may have different definitions for their 
non trust assets. For clarity, the BIA suggests delineating which 
definitions and provisions apply to trust and non trust property in the 
Tribal Probate Code.

Section 1-200 General Definitions.

    For purposes of this Code--
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Child includes any formally adopted child.
    Consolidation agreement means a written agreement under the 
provisions of 25 U.S.C. 2206(e) or 25 U.S.C. 2206(j)(9), by which a 
decedent's heirs and devisees consolidate interests in trust or 
restricted land, entered during the probate process, approved by the 
judge, and implemented by the probate order.
    Decedent means a person who is deceased.
    Department or DOI means the Department of the Interior.
    Devise means a gift of property by will. Also, to give a gift of 
property by will.
    Devisee means a person or entity that receives property under a 
will.
    Eligible heirs means, for purposes of Article 2 Part 1 (25 U.S.C. 
2206), any of a decedent's children, grandchildren, great 
grandchildren, full siblings, half siblings by blood, and parents who 
are--
    (a) Indian; or
    (b) Lineal descendents within two degrees of consanguinity of an 
Indian; or
    (c) Owners of a trust or restricted interest in a parcel of land 
for purposes of inheriting by descent, renunciation, or consolidation 
agreement under Article 2 Part 1 of this code or 25 U.S.C. 2206, 
another trust or restricted interest in such parcel from the decedent.
    Estate means the land and personalty owned by the decedent at the 
time of death.
    Heir means any individual or entity eligible to receive land and 
personalty from a decedent in an intestate proceeding.
    Heirs of the first or second degree means parents, children, 
grandchildren, grandparents, brothers and sisters of a decedent.
    Indian means--
    (a) Any person who is a member of a federally recognized Indian 
tribe, is eligible to become a member of any Indian tribe, or is an 
owner (as of October 27, 2004) of an interest in trust or restricted 
land;
    (b) Any person meeting the definition of Indian under 25 U.S.C. 
479; and the regulations promulgated thereunder; and
    (c) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in subparagraph (a) or (b) of this definition or any 
person who owns a trust or restricted interest in a parcel of land in 
that State.
    Indian Tribe or Tribe means any Indian tribe, band, group, pueblo, 
or community for which or for the members of which the United States 
holds lands in trust.
    Intestate means the decedent died without a valid will.

[[Page 54676]]

    Land means any real property and includes within its meaning for 
purposes of this Code improvements permanently affixed to real 
property.
    Minor means an individual who has not reached the age of majority 
as defined by the applicable law. For all trust and restricted 
property, the age of majority is 18 years of age. See 25 U.S.C. 373.
    Probate means the legal process by which applicable tribal, 
Federal, or State law that affects the distribution of a decedent's 
estate is applied to:
    (a) Determine the heirs;
    (b) Determine the validity of wills and determine devisees;
    (c) Determine whether claims against the estate will be paid from 
trust funds; and
    (d) 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 the funds or land.
    Purchase option at probate refers to the process by which eligible 
purchasers can purchase a decedent's interest during the probate 
proceeding.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
consent of the Secretary. For the purposes of probate proceedings, 
restricted property is treated as if it were trust property.
    Secretary means the Secretary of the Interior or an authorized 
representative. The authorized representative of the Secretary for the 
performance of probate functions is BIA. The authorized representative 
of the Secretary for adjudication of probate for trust and restricted 
interests is OHA.
    Testate means that the decedent executed a valid will.
    Testator means a person who has executed a valid will.
    Trust personalty means all funds and securities of any kind that 
are held in trust in an individual Indian money account (IIM account) 
or otherwise owned in trust by the United States for the benefit of an 
individual Indian.
    Trust property means real or personal property, or an interest 
therein, for which the United States holds the title to the property in 
trust for the benefit of an individual Indian or tribe.
    Will means a written document executed with the required 
formalities and intended to facilitate the passage of the testator's 
property upon death.
    Without regard to waste means, with respect to a life estate 
interest in land, that the holder of such estate is entitled to the 
receipt of all income, including bonuses and royalties, from such land 
to the exclusion of the remainderman.

COMMENT--SECTION 1-200

    See 25 U.S.C. 2201. Tribes may change certain definitions to suit 
their specific needs. Tribes may alter or add definitions for 
``spouse'' or ``child'' to incorporate tribal customs or laws. The 
definitions for ``child'' and ``spouse'' must be consistent with the 
definitions of those terms in the Tribe's family law codes if 
applicable. All definitions must be consistent with Federal law. 
Certain definitions may not be changed; these definitions include but 
are not limited to: ``Indian'', ``consolidation agreements'', ``land'', 
``purchase option at probate,'' and ``without regard to waste.''
    Tribes do not have to use all of the definitions listed in the 
Model Tribal Probate Code. Additional definitions are acceptable.

PART 3. SCOPE, JURISDICTION AND COURTS

Section
    1-300 Subject Matter Jurisdiction.
    1-301 Application of Tribal Probate Codes.
    1-302 Appeals.

COMMENT--PART 3

    See 25 U.S.C. 2205. Territorial Application.
    Notwithstanding any other provision of law, any Indian tribe may 
adopt a Tribal Probate Code to govern descent and distribution of trust 
or restricted lands that are--
    (a) Located within that Indian tribe's reservation; or
    (b) Otherwise subject to the jurisdiction of that Indian tribe.

Section 1-300 Subject Matter Jurisdiction.

    (a) The Department of the Interior.
    (1) The Department of the Interior has exclusive jurisdiction over 
the adjudication of probate estates for owners of trust or restricted 
property. This function may not be delegated through a compact or 
contract.
    (2) The Department of the Interior has exclusive jurisdiction in 
the preparation of probate packages. This function may be performed by 
a Tribe through a compact or contract.
    (b) Tribal Courts. To the extent permitted by its Tribal 
constitution, and other applicable Federal and State laws, the Tribal 
Probate Court has jurisdiction over all non-trust subject matter 
relating to:
    (1) Estates of decedents, including construction of wills, 
determination of heirs, successors of decedents, and estates of 
protected persons;
    (2) Protection of minors and incapacitated persons; and
    (3) Trusts that are not under the exclusive jurisdiction of the 
Department of Interior.

COMMENT--SECTION 1-300

    See 25 U.S.C. 2205. The Constitution of a Tribe does not supersede 
AIPRA or other Federal law. The Department is not required to follow 
Tribal law timelines for review of codes. A Tribe may not determine a 
different enactment date for their tribal probate code with regard to 
trust and restricted property.

Section 1-301 Application of Tribal Probate Code.

    When probating an estate, the Department will apply an approved 
Tribal Probate Code for all trust and restricted estates, subject to 
the jurisdiction of that Tribal Probate Code.

COMMENT--SECTION 1-301

    See 25 U.S.C. 2205. AIPRA will be applied by the Department of 
Interior to determine the distribution of trust personalty in all trust 
and restricted estates.
    In instances where the approved Tribal Probate Code is silent on an 
issue in a particular estate, the Department will apply AIPRA or other 
controlling applicable law.

Section 1-302 Appeals.

    Application for appellate review, including the right to appellate 
review, will be governed by 43 CFR Part 4 Subpart D for all trust or 
restricted property estates.

COMMENT--SECTION 1-302

    See 43 CFR Part 4. Tribes may not change the timelines for 
applications of de novo review, reopening, or rehearing.

PART 4. REQUIREMENTS FOR TRIBAL PROBATE CODES

Section
    1-400 Submission of Tribal Probate Code to the Secretary of 
Interior.

1-400 Submission of Tribal Probate Code to the Secretary of Interior.

    Tribal Probate Codes and Tribal Probate Code amendments containing 
provisions on trust and restricted lands must be submitted to the 
Secretary of the Interior for approval.

COMMENT--SECTION 1-400

    See 25 U.S.C. 2205. If the Secretary disapproves a Tribal Probate 
Code, or an amendment to the a code, the Secretary shall include a 
written explanation of the reasons for the disapproval in the notice of 
disapproval to the Indian Tribe.

[[Page 54677]]

    Consistency with Federal Law and Policies
    (a) The Tribal Probate Code must be consistent with Federal law and 
promote the policies set forth in section 102 of the Indian Land 
Consolidation Act Amendments of 2000. Those policies are to:
    (1) Prevent further fractionation of trust allotments;
    (2) Consolidate fractional interests and ownership of those 
interests into usable parcels;
    (3) Consolidate fractional interests in a manner that enhances 
tribal sovereignty;
    (4) Promote Tribal self sufficiency and self determination;
    (5) Reverse the effects of the allotment policy on Indian tribes.
    Tribal Probate Codes must be consistent with Federal law. Federal 
law includes the Department's regulations. The proposed regulations for 
Indian trust and restricted estates can be found at 25 CFR Part 15, 25 
CFR Part 18, 25 CFR Part 179, 43 CFR Part 30, and 43 CFR Part 4. 
Current probate regulations may be found at 25 CFR Part 15 and 43 CFR 
Part 4.

ARTICLE II. INTESTACY

PART 1. INTESTATE SUCCESSION

Section
    2-100 Intestate Estate.
    2-101 Share of Surviving Spouse.
    2-102 Intestate Succession.
    2-103 Intestate Descent of Small Fractional Interests in Land.
    2-104 Right of Representation.
    2-105 Requirement that Heir Survive Decedent for 120 Hours.

Section 2-100 Intestate Estate.

    Rules of descent. Any trust or restricted interest in land that is 
not disposed of by a valid will shall descend according to
    (a) Sections 2-101 through 2-103; and
    (b) Other applicable Federal law.

COMMENT--SECTION 2-100

    See 25 U.S.C. 2206.

Section 2-101 Share of Surviving Spouse.

    (a) If there is a surviving spouse of the decedent, the spouse 
shall receive a life estate, without regard to waste, in the trust or 
restricted lands of the decedent.
    (b) If there is a surviving spouse of the decedent, the spouse 
shall receive the appropriate trust personalty as outlined in AIPRA. 25 
U.S.C. 2206(a)(2).
    (c) The remainder of the estate shall pass as set forth in Section 
2-102 and 2-103.

COMMENT--SECTION 2-101

    See 25 U.S.C. 2206.

Section 2-102 Intestate Succession.

    Where there is no surviving spouse of the decedent, or there is a 
remainder interest pursuant to section 2-101, the trust or restricted 
estate or such remainder shall, subject to sections 2-100 and section 
2-103, pass as follows:
    (a) To those of the decedent's children who are eligible heirs in 
equal shares (or if one 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).
    (b) If the property does not pass under paragraph (a) of this 
section, to those of the decedent's surviving great-grandchildren who 
are eligible heirs, in equal shares.
    (c) If the property does not pass under paragraph (a) or (b) of 
this section, 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.
    (d) If the property does not pass under paragraph (a), (b), or (c) 
of this section, to those of the decedent's surviving siblings who are 
eligible heirs, in equal shares.
    (e) If the property does not pass under paragraph (a), (b), (c), or 
(d) of this section, to the Indian tribe. Except that notwithstanding 
paragraph (e), an Indian co-owner (including the Indian tribe referred 
to in paragraph (e)) of a parcel of trust or restricted land may 
acquire an interest that would otherwise descend under that paragraph 
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 one Indian co-owner offers to pay for such interest, 
the highest bidder shall acquire the interest.

COMMENT--SECTION 2-102

    See 25 U.S.C. 2206. Tribal Probate Codes may include rules of 
intestate succession and other tribal probate provisions that are 
consistent with Federal law and promote the policies of the 2000 ILCA 
amendments. 25 CFR 2205(a)(2)(A)(B). Tribes may not change the 
provisions of AIPRA regarding consolidation agreements, purchase option 
at probate, or determination of valuation methods.
    Further, in intestate cases, the life estate of a surviving spouse 
must be ``without regard to waste.''

Section 2-103 Intestate Descent of Small Fractional Interests in Land.

    Notwithstanding the sections relating to intestacy and testamentary 
disposition, 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 
paragraphs (a) and (b).
    (a) Surviving spouse. If there is a surviving spouse, and such 
spouse was residing on a parcel of trust or restricted land 
representing less than 5 percent of the entire undivided ownership of 
the parcel of land of which such interest is a part 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 the single heir rule.
    (b) Single heir rule. Where there is no life estate created for a 
surviving spouse or there is a remainder interest under that paragraph, 
the trust or restricted interest or remainder interest that is subject 
to this Part shall descend, in trust or restricted status, to--
    (1) The decedent's surviving child, but only if such child is an 
eligible heir; and if two or more surviving children are eligible 
heirs, then to the oldest of such children;
    (2) If the interest does not pass under subparagraph (1) of this 
section, the decedent's surviving grandchild, but only if such 
grandchild is an eligible heir; and if two or more surviving 
grandchildren are eligible heirs, then to the oldest of such 
grandchildren;
    (3) If the interest does not pass under subparagraph (1) or (2) of 
this section, the decedent's surviving great grandchild, but only if 
such great grandchild is an eligible heir; and if two or more surviving 
great grandchildren are eligible heirs, then to the oldest of such 
great grandchildren;
    (4) If the interest does not pass under subparagraph (1), (2), or 
(3) of this section, then to the Indian tribe.

COMMENT--SECTION 2-103

    See 25 U.S.C. 2206. A Tribe may adopt a rule of intestate descent 
applicable to the single heir rule that differs from the order of 
descent set forth in AIPRA. The Secretary shall apply such rule to the 
intestate interest in distributing the decedent's estate but only if--
    (a) 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 paragraph;

[[Page 54678]]

    (b) 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;
    (c) The tribal rule does not apply to any interest disposed of by a 
valid will;
    (d) The decedent died on or after the effective date of the Tribal 
Probate Code; and
    (e) The Secretary does not make a determination within 90 days 
after a copy of the tribal rule is delivered pursuant to item (a) that 
the rule would be unreasonably difficult to administer or does not 
conform with the requirements in item (b) or (c).

Section 2-104 Right of Representation.

    If, under this Article, 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 one share, and the share of each pre-deceased child 
shall be divided equally among the pre-deceased child's children.

COMMENT--SECTION 2-104

    See 25 U.S.C. 2206. AIPRA sets forth a detailed and specific scheme 
for the right of representation and therefore may not be modified in a 
Tribal Probate Code. Right of representation does not refer to the 
single heir rule.

Section 2-105 Requirement That Heir Survive Decedent for 120 Hours.

    In the case of intestate succession under this Article, 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 Article.

COMMENT--SECTION 2-105

    See 25 U.S.C. 2206. AIPRA sets forth a detailed and specific scheme 
for the requirement that an heir survive the decedent for 120 hours and 
therefore may not be modified in a Tribal Probate Code.

ARTICLE III. WILLS AND TESTAMENTARY DISPOSITION

PART 1. WILLS

Section
    3-100 Who May Make a Will.
    3-101 Requirements for Wills.

Section 3-100 Who May Make a Will.

    Any person 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust or restricted land or 
trust personalty, may dispose of trust or restricted land or trust 
personalty by will.

COMMENT--SECTION 3-100

    See 25 U.S.C. 2206. A Tribe may elect a different age of majority 
for non trust land and personalty.
    A Tribe may also want to include emancipated minors in this section 
for non-trust or restricted property.

Section 3-101 Requirements for Wills.

    A will must be executed and dated in writing and attested by two 
disinterested adult witnesses.

COMMENT

    See 25 CFR Part 15. The Department requires this criteria for wills 
devising trust or restricted property.

PART 2. TESTAMENTARY DISPOSITION

Section
    3-200 General Devise of an Interest in Trust or Restricted Land.
    3-201 Rules of Interpretation.
    3-202 Devise of Trust or Restricted Land as a Life Estate or 
Fee.
    3-203 Invalid Devisees and Wills.
    3-204 Presumption of Joint Tenancy.

Section 3-200 General Devise of an Interest in Trust or Restricted 
Land.

    Subject to any applicable Federal law relating to the devise or 
descent of trust or restricted land, the owner of a trust or restricted 
interest in land may devise such interest to--
    (a) Any lineal descendant of the testator;
    (b) Any person who owns a pre-existing undivided trust or 
restricted interest in the same parcel of land;
    (c) The Tribe with jurisdiction over the interest in land; or
    (d) Any Indian;

in trust or restricted status.

COMMENT--SECTION 3-200

    See 25 U.S.C. 2206.

Section 3-201 Rules of Interpretation.

    Any devise of a trust or restricted interest in land pursuant to 
section 3-200 to an Indian or the Tribe 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 paragraph (a) or (b) of section 3-200 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 section 3-202.

COMMENT--SECTION 3-201

    See 25 U.S.C. 2206.

Section 3-202 Devise of Trust or Restricted Land as a Life Estate or in 
Fee.

    Except as provided for under any applicable Federal law, any trust 
or restricted interest in land that is not devised in accordance with 
section 3-200 may be devised only--
    (a) As a life estate to any person, with the remainder being 
devised only in accordance with section 3-200 or 3-201; or
    (b) Except as provided in subparagraph 3-201, as a fee interest 
without Federal restrictions against alienation to any person who is 
not eligible to be a devisee under paragraph (d) of section 3-200.

COMMENT--SECTION 3-202

    See 25 U.S.C. 2206.

Section 3-203 Invalid Devises and Wills.

    (a) Land. Any trust or restricted interest in land that is not 
devised in accordance with the above sections 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 ARTICLE II Section 2-102 and 
2-103.
    (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 AIPRA.

COMMENT--SECTION 3-203

    See 25 U.S.C. 2206. Prohibited Devise; Exceptions
    (a) The Tribal Probate Code must allow the devise of an interest 
to:
    (1) An Indian lineal descendant of the original allottee; and
    (2) An Indian who is not a member of the Indian tribe with 
jurisdiction over the interest in the land;
    (b) The Code may restrict the ability of the devisees listed in (a) 
to inherit so long as the code allows:
    (1) Those devises to renounce their interests to the eligible 
devisees as defined by the tribal code;
    (2) A devisee who is the spouse or lineal descendant of the 
testator to reserve a life estate without regard to waste; and
    (3) For the payment of fair market value as determined by the 
Department on the date of the decedent's death.

[[Page 54679]]

Section 3-204 Joint Tenancy; Right of Survivorship.

    (a) Presumption of joint tenancy. If a testator devises trust or 
restricted interests in the same parcel of land to more than one 
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.
    (b) Exception. Paragraph (a) 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 June 20, 2006 (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). (25 USCS 2201 note).

COMMENT--SECTION 3-204

    See 25 U.S.C. 2206. A Tribe may not alter the presumption of joint 
tenancy.

ARTICLE IV. MISCELLANEOUS

PART I

Section
    4-100 Amendments to the Tribal Probate Code.

Section 4-100 Amendments to the Tribal Probate Code.

    Amendments to the Tribal Probate Code are permitted if they are 
consistent with AIPRA and the Department of the Interior's regulations. 
Amendments to a Tribal Probate Code must be approved by the Department.

COMMENT--SECTION 4-100

    See 25 U.S.C. 2205.

 [FR Doc. E7-19103 Filed 9-25-07; 8:45 am]
BILLING CODE 4310-W7-P