American Indian Probate Regulations, 72068-72094 [2021-27257]

Download as PDF 72068 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 15 Office of the Secretary 43 CFR Part 30 [212A2100DD/AAKC001030/ A0A501010.999900 253G] RIN 1094–AA55 American Indian Probate Regulations Bureau of Indian Affairs, Office of the Secretary, Interior. ACTION: Final rule. AGENCY: The Department of the Interior (Department) is finalizing updates to its regulations governing probate of property that the United States holds in trust or restricted status for American Indians, in an effort to continually improve the services the Department provides to individual Indians and Tribes. These updates allow the Office of Hearings and Appeals (OHA) to adjudicate probate cases more efficiently by, among other things, establishing an expedited process for small, funds-only estates, reorganizing the purchase-at-probate process so that estates may be closed more quickly, and specifying which reasons justify reopening of closed probate estates. The revisions also enhance OHA’s processing by adding certainty as to how estates should be distributed when certain circumstances arise that are not addressed in the statute, and improve notification to interested parties by, among other things, requiring posting of probate notices on a devoted OHA web page. DATES: This rule is effective on January 19, 2022. FOR FURTHER INFORMATION CONTACT: Elizabeth K. Appel, Director, Office of Regulatory Affairs & Collaborative Action—Indian Affairs, Elizabeth.appel@bia.gov, (202) 273– 4680. SUMMARY: khammond on DSKJM1Z7X2PROD with RULES2 SUPPLEMENTARY INFORMATION: I. Executive Summary II. Background and History of This Rulemaking III. Proposed Rule Comments and Responses A. Trust Funds for Funeral Services (§ 15.301) B. Definitions (§ 30.101) C. Mailed Notice of Probate to Co-Owners (§ 30.114) D. Determination of Indian Status (§ 30.123, § 30.235) E. Presumption of Death (§ 30.124) F. Partition (§ 30.125) G. Renunciations (§§ 30.180–30.192) VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 H. Summary Probate Proceedings (§§ 30.200–30.209) I. Posted and Published Notice of Probate (§ 30.211) J. Rehearing (§§ 30.238–30.242) and Reopening (§§ 30.243–30.249) K. Correction of Non-Substantive Errors in Probate Decision (§ 30.250) L. Inventory Corrections: New Property Added After Probate Decision (§ 15.404/ § 30.251) and Incorrectly Included Property (§ 15.405/§ 30.252) M. Purchase at Probate (Subpart M) N. Miscellaneous IV. Overview of Final Rule A. Summary of Final Rule B. Changes From Proposed Rule to Final Rule C. Crosswalk of Current Regulation to New Regulation V. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) I. Executive Summary This final rule updates regulations that address how OHA probates property that the United States holds in trust or restricted status for American Indians. These revisions allow OHA to adjudicate probate cases more efficiently by, among other things, establishing an expedited process for small, funds-only estates, reorganizing the purchase-at-probate process so that estates may be closed more quickly, and specifying which reasons justify reopening of closed probate estates. The revisions also enhance OHA’s processing by adding certainty as to how estates should be distributed when certain circumstances arise that are not addressed in the statute, and improve notification to interested parties by, among other things, requiring posting of probate notices on a devoted OHA web page. II. Background and History of This Rulemaking The Department probates thousands of estates each year for American Indian individuals who own trust or restricted property. The Bureau of Indian Affairs (BIA), OHA, and the Office of the Special Trustee for American Indians (OST) each play a role in the probate process. BIA compiles the information necessary to build a case record (i.e., the PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 probate file) and then transfers the record to OHA for a judge to adjudicate and issue a final probate decision. In accordance with the final probate decision, OST distributes trust funds from the estate and BIA distributes the trust or restricted real property. After the American Indian Probate Reform Act (AIPRA) was enacted in 2004, the Department codified implementing regulations at 25 CFR part 15 for the BIA and OST portions of the probate process and at 43 CFR part 30 for the OHA adjudication process. 73 FR 67255 (November 13, 2008); 76 FR 45198 (July 28, 2011). In 2016 and 2017, BIA reached out to Tribes for input on how the probate process was working, hosting a Tribal listening session in Spokane, Washington, on June 27, 2016, hosting two Tribal consultation teleconference sessions on July 12 and 13, 2016, and accepting written comment through January 4, 2017. In 2019, the Department identified issues in the existing regulations and sought input, through an advance notice of proposed rulemaking (ANPRM), on where improvements may be made through regulatory change. 84 FR 58353 (October 31, 2019). In January 2021, the Department then published a proposed rule. 86 FR 1037 (January 7, 2021). In the preamble to the proposed rule, the Department addressed each of the six comment submissions it received in response to the ANPRM. During the public comment period, the Department hosted a Tribal consultation session on February 9, 2021, and a public meeting on February 11, 2021. The Department also held an additional public session at the request of Tribal members on March 9, 2021. The original deadline for comments on the proposed rule was March 8, 2021; however, in response to requests to extend the comment deadline, the Department announced on its website in March that it would be extending the deadline for comments to April 8, 2021, and later to April 29, 2021. 86 FR 19585 (April 14, 2021). III. Proposed Rule Comments and Responses The Department received 24 written comment submissions on the proposed rule, including three from Tribes. The Department also received several comments during its Tribal consultation and public hearing sessions. The following provides a summary of the comments and the Department’s responses. E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations A. Trust Funds for Funeral Services (§ 15.301) C. Mailed Notice of Probate to CoOwners (§ 30.114) The two Tribes that commented on § 15.301 expressed their support of increasing the amount of funding available for funeral services from decedents’ Individual Indian Money (IIM) accounts. One Tribe also expressed support for the proposed removal of the requirement for the IIM account to have a specific balance in order for funds to be disbursed for funeral services. Response: The final rule adopts the proposal to increase the funeral service funding available from $1,000 to $5,000 and remove the requirement for the IIM account to have a specific balance in order for funds to be disbursed for funeral services. One Tribe noted that in some circumstances, the descendant’s Tribe may pay for funeral costs and that BIA should ensure the Tribe has not paid, to safeguard Individual Indian Money (IIM) accounts. An individual commenter also noted that the Tribe may pay for funeral arrangements. Response: To address these comments, the final rule adds a condition to receiving funds that the requestor has not received sufficient funds from the decedent’s Tribe to pay the entire cost of the funeral arrangements. See § 15.301(a)(2). One commenter requested that the creditor claims regulations that were in place prior to enactment of AIPRA be restored. Response: The proposed rule did not propose any changes to creditor claim provisions beyond increasing the amount of funding from IIM accounts available for funerals. The creditor claims regulations that were in place prior to the enactment of AIPRA were replaced through public notice and comment rulemaking in 2005 and 2008. See 70 FR 11803 (March 9, 2005); 73 FR 67255 (November 13, 2008). Four individual commenters objected to the proposed rule’s approach to providing notice of the probate to potential heirs who may inherit solely as co-owners (i.e., persons who own an undivided trust or restricted interest in the same parcel in which the decedent owns an interest). The proposed rule at § 30.114 stated that potential heirs who may inherit solely based on their status as co-owners would not receive mailed notice of a probate proceeding unless they previously filed a request for notice with BIA or OHA. The commenters who objected to this approach stated that the co-owners should continue to receive mailed notice of the probate without having to file a request to receive notice. Response: To address commenters’ objections, the final rule retains the current regulations’ approach, which requires that all interested parties— including co-owners, when they are potential heirs—receive mailed notice of probate proceedings. See § 30.114 and definition of ‘‘interested party’’ in § 30.101. Nevertheless, it is important to note that a co-owner is not necessarily an heir, and the statute requires actual written notice only to ‘‘all heirs.’’ See 25 U.S.C. 2206(m). A co-owner may potentially be an heir in only one circumstance: If a decedent dies without any eligible person heirs as listed in AIPRA’s order of succession, and there is no Tribe with jurisdiction over the allotment. One commenter asked how co-owners would know of the opportunity to purchase decedent’s interest at probate if they are not notified of the probate. Response: Under both the current and final rule, co-owners receive mailed notice if they are potential heirs; all other co-owners receive notice through posting. khammond on DSKJM1Z7X2PROD with RULES2 B. Definitions (§ 30.101) A commenter requested a new definition for ‘‘co-owner’’ and for the phrase ‘‘potential or actual heirs who may or will inherit solely as coowners.’’ Response: The final rule adds a new definition for co-owner in § 30.101, to mean persons who own an undivided trust or restricted interest in the same parcel in which the decedent owns an interest. No definition of the other phrase was added because the proposed provisions using that phrase were not adopted in the final rule. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 D. Determination of Indian Status (§ 30.123) A Tribe stated its support of limiting determinations as to whether heirs and devisees have Indian status in § 30.123 to those situations where the determinations are necessary for the probate decision and stated that this change would increase efficiency. Response: The final rule includes this proposed change at both § 30.123 and § 30.235, so that judges will make the determination of Indian status only when relevant. An individual stated that determining Indian status cannot be eliminated because it is relevant in determining whether a person takes in fee or is eligible for Tribal membership. This PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 72069 individual stated that it is more difficult to identify when Indian status does not have to be determined than to determine the status for everyone, and suggested a chart needs to be prepared to show all situations in which Indian status is relevant. Response: The final rule does not eliminate the requirement to determine Indian status. The final rule adopts the proposed rule provision requiring a determination of Indian status ‘‘where relevant.’’ There are situations where Indian status is not relevant, and under the final rule, the judge would not issue a determination of Indian status in those situations; however, the judge would issue a determination of Indian status when that status is relevant. E. Presumption of Death (§ 30.124) A Tribe who commented on the proposed presumption of death provisions agreed that the six-year period should begin on the date of the last known contact with the absent person and stated that allowing for a presumption will improve efficiency while allowing parties to present evidence to rebut the presumption if appropriate. Response: The final rule includes these proposed presumption of death provisions. An individual stated their opposition to the proposed presumption of death provisions, stating that there are a lot of people who are absent for six years and that should not allow a presumption that they no longer exist without evidence of the person’s routine daily activities and social relationships and documentation of the measures taken to locate the person. Response: The requirements for BIA to initiate a probate case when a person has been absent without explanation for six or more years are at § 15.106 and would not change under either the proposed or final rule. The final rule adopts the proposed rule’s provisions for allowing the judge to presume that the person died at a certain time (i.e., the date of last contact based on signed affidavits or sworn testimony by those in a position to know that facts and other records show that the person has been absent from his or her residence for no apparent reason, or has no identifiable place of residence and cannot be located, and has not been heard from for at least 6 years.). F. Partition (§ 30.125) A Tribe who commented on the proposed partition section at § 30.125 noted that it is a good idea to allow someone to partition their land by will. E:\FR\FM\20DER2.SGM 20DER2 72070 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Response: The final rule includes these proposed provisions allowing for partition by will. khammond on DSKJM1Z7X2PROD with RULES2 G. Renunciations (§§ 30.180–30.192) The Tribe who commented on the proposed renunciation provisions expressed support of the expanded opportunities for renunciation to protect property from going out of trust. Response: The final rule adopts the proposed renunciation provisions expanding opportunities for renunciation. An individual stated that there is no downside to allowing maximum opportunities for parties to renounce inheritance of interests. A group of individuals commenting together recounted their experience with a Tribe renouncing an interest in a specific estate. Response: The final rule increases the opportunity for renunciations by allowing renunciations at the rehearing stage. To clarify that entities, in addition to individuals, may renounce, the final rule explicitly adds in § 30.180 that entities may renounce. H. Summary Probate Proceedings (§§ 30.200–30.209) An individual objected to the proposed rule’s approach to summary probate proceedings as a violation of due process because affected parties would not receive notice of the probate before the probate decision is issued. Response: The final rule adopts the proposed rule’s approach to notice in summary probate proceedings because there is no violation of due process for the following reasons: (1) While interested parties do not receive notice of the summary probate until a probate decision is issued, at that time, the interested parties have the right to file a request for review of the probate decision and the probate decision does not become final unless and until the 30-day period for them to request review has expired without any interested party filing a timely request. This approach mirrors the current summary probate proceeding approach, except that the term ‘‘proposed summary probate decision’’ is no longer used. (2) The proposed and final rule also limit the estates that are subject to summary probate proceedings by lowering the dollar threshold (from $5,000 to $300), meaning that interested parties in more estates will receive formal probate proceeding notice. The amount of due process that is appropriate depends upon the circumstances, and this rule’s approach appropriately considers the circumstances. (3) Other revisions to the VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 summary probate process that allow estates to be handled more efficiently obviate the need for notice prior to the issuance of the summary probate decision: Elimination of the option to convert the proceedings to formal probate proceedings, elimination of consideration of claims against the estate, and extending the deadline for renouncing to 30 days after the mailing of the probate decision. The probate decision under the proposed rule would then not only set out and explain the distribution but also provide instructions on how to renounce or seek review of the decision. This proposal also promotes due process by providing the opportunity for anyone adversely affected by a summary probate proceeding decision to file a request for review and streamlines that review process by allowing for reconsideration rather than de novo review. A commenter stated that eliminating hearings for simple estates undermines due process and that more due process is owed because of the trust responsibility. Another commenter stated that due process should be afforded even for small estates. Response: Due process is still being afforded to interested parties in summary probate proceedings because, as explained above, the summary probate decision does not become final until the period for interested parties to request review has passed. As noted above, this approach mirrors the current approach except that the probate decision is no longer being called a ‘‘proposed summary probate decision.’’ A Tribe stated their support of disallowing claims against small estates in summary probate proceedings. An individual asked for an explanation for disallowing claims. Response: The final rule continues to disallow claims with the goal of efficient handling of low value cashonly estates. A commenter stated that summary probate proceedings should not be applied to estates containing real property. Response: Summary probate proceedings are available only for cashonly estates. One Tribe objected to reducing the monetary threshold for estates from $5,000 to $300 for summary probate. Response: The Department considered this comment and determined that the summary process will be more effective if it focuses on estates that are valued at $300 or less. The Department concluded that there is a value to conducting formal probate proceedings for cash only estates valued between $301 and $5,000. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 The same Tribe objected to allowing 30, rather than 10, days in § 30.208 for OHA to notify the agencies and interested parties that a request review of a summary probate decision has been filed, noting that the extension conflicts with the stated purpose of the revisions to make the process more efficient. Response: The rule expanded the time for OHA to notify agencies and interested parties that a request for review of a summary probate decision has been filed, because this expansion is necessary to allow OHA flexibility in balancing workloads and the maximum additional 20 days this could add to the process is outweighed by the efficiencies gained from eliminating the option for converting summary probate proceedings to formal probate proceedings. One commenter suggested the Department use a ‘‘transfer on death deed’’ for small estates, rather than the summary probate process to allow assets to transfer to a single beneficiary immediately upon decedent’s death without having to go through any OHA process. Response: The Department has reviewed the possibility of allowing for ‘‘payable on death’’ provisions but has determined that a legislative change is necessary to provide authority for such an approach. An individual commenter requested the definition of ‘‘summary probate proceeding’’ and the provision at § 30.200(b) be revised to add the phrase ‘‘and does not include any trust or restricted land.’’ Response: The final rule does not incorporate these edits because the definition and § 30.200(b) are both clear in saying that the estate includes ‘‘only an IIM account’’ and ‘‘only funds in an IIM account,’’ respectively. I. Posted and Published Notice of Probate (§ 30.211) Two Tribes and two individuals expressed concern about the proposal to allow for no physical posting of the formal probate proceeding if the agency office is closed or inaccessible or if extenuating circumstances prevent personnel physically posting. One of these Tribes stated that it would be helpful to post at the local BIA agency when possible. The other Tribe stated that there should be physical posting in at least one public location. Response: To address these comments, the final rule requires physical posting in at least one location: The agency or, if posting at the agency is not possible due to the agency office being closed or inaccessible, then at a conspicuous place near that agency. The E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 final rule does not adopt the proposal to allow for no physical posting in some circumstances and deletes the condition for extenuating circumstances preventing personnel physically posting as well as the proposed definition for ‘‘extenuating circumstances’’ in § 30.101. Two Tribes expressed their support for posting hearing notices on a central website. One of the Tribes recommended a centralized website for all notices related to probate cases and other non-probate matters. An individual also expressed support for posting notices on OHA’s website. Response: The final rule includes the proposed provision requiring OHA to post probate notices on its website. BIA is also working on making additional appropriate information on the probate process available on its website. One Tribe agreed with the proposal to remove the requirement for newspaper notices as no longer necessary; however, another Tribe noted that publication in the Tribal newspaper may better reach elders in the community. Response: The final rule adds that an OHA judge may cause notice to be published in a local newspaper or other publication if the judge determines that additional notice is appropriate. See § 30.211(d). J. Rehearing (§§ 30.238–30.242) and Reopening (§§ 30.243–30.249) The Tribe that commented on the rehearing and reopening provisions supported imposing limitations on reopening to avoid prolonging the probate, limiting who may seek rehearing to only interested parties, requiring a rehearing to be based on correcting a substantive error, and allowing a rehearing petition to be considered as a reopening petition if not timely filed so the petitioner would not have to refile. The Tribe also supported prohibiting successive petitions for rehearing by the same party to prevent parties from abusing the process and supported the limit of one year (from discovery of the error) for reopening when an individual or BIA on behalf of an individual for reopening and requiring a showing of an error of fact or law. Response: The final rule adopts all these proposed provisions. An individual stated the provisions barring persons from seeking postdecision review because they were not present at the original hearing does not account for how poor U.S. mail service is on Indian reservations. Response: Neither the proposed nor final rule bar persons who were not present at the original hearing from VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 seeking post-decision review. See § 30.238(d)(1) (‘‘whether or not you attended the hearing.’’) The same individual objected to the 30-day period for seeking a rehearing (at § 30.238(a)) and stated that the 60-day period allowed under regulations in place before AIPRA was enacted should never have been changed. Response: The period for seeking reopening has been 30 days since 2008 and there have been no practical issues with that time period, as most challenges are resolved quickly and 60 days needlessly prolongs the process. A commenter objected to limitations on petitions to reopen, noting that individuals fail to participate in probates for legitimate reasons. Response: The limitations on petitions to reopen apply to those who received proper notice of the probate and so had the opportunity to participate in the probate but did not avail themselves of that opportunity. An individual stated that any legitimate family member should be allowed to petition the judge to reopen a probate. Response: Family members who are interested parties should receive sufficient notice and opportunity to participate in the probate; if they have not received sufficient notice, then they may seek reopening if proper grounds are shown. A Tribe stated that an explicit timeframe, such as 10 days, should be added for OHA to notify BIA of the filing of a petition for rehearing, rather than ‘‘as soon as practicable.’’ Response: The final rule retains the phrase ‘‘as soon as practicable’’ rather than adding a specific period because this phrase recognizes the urgency but allows for more flexibility than a specific number of days would afford. An individual stated that the season for reopening petitions to be filed runs indefinitely under proposed § 30.243, and that an end point should be added to establish finality and certainty. Response: The final rule does not add an outer bound deadline because a deadline would limit the judge’s discretion in balancing whether the need to reopen to correct the error outweighs the interests of the public and heirs and devisees in the finality of the probate proceeding. An individual suggested certain clarification edits, including adding to § 30.241 that a rehearing is for the same probate and adding to § 30.243 that reopening petitions are filed with the judge. Response: The final rule incorporates these suggested edits. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 72071 The same individual suggested adding a new paragraph (c) to § 30.245, regarding the legal standard for reopening, to require the judge to notify interested parties of a determination to reopen. Response: The judge notifies interested parties under § 30.248(c) of the final order. This final rule provision is broader than the current regulations, which require notification only to affected parties. This individual also suggested adding to § 30.246(c)(6), that in considering the interest in administrative finality the judge should consider ‘‘a concise justification of why and how the information provided in support of the petition to reopen would lead the judge to determine that the need to correct the error outweighs the interests of the public and heirs or devises in the finality of the probate proceedings.’’ Response: The final rule does not add this additional language because the substance of the suggested language is already set out in paragraphs (a) and (b), as well as the introductory language in paragraph (c) of § 30.246. The individual commenter expressed agreement with § 30.248(b)(2)(iii) and recommended adding a requirement to suspend any changes to title to the underlying property while the reopening procedures are pending. Response: The final rule states that the judge will suspend further distribution of the estate or income during the reopening proceedings, if appropriate. K. Correction of Non-Substantive Errors in Probate Decision (§ 30.250) A Tribe expressed support for authorizing BIA to make nonsubstantive corrections to a probate decision but noted that OHA should have final authority over any corrections. Response: Under the proposed and final provisions, BIA contacts OHA in all cases to issue a correction to a probate decision. Another Tribe expressed general support for allowing OHA to address typographical and other non-substantive errors in a probate decision without reopening a probate case, but recommended clearly defining what would be a ‘‘non-substantive error.’’ Response: The regulation at § 30.250 states that errors are non-substantive if they are merely typographical, clerical, or their correction would not change the distribution of a decedent’s property. E:\FR\FM\20DER2.SGM 20DER2 72072 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 L. Inventory Corrections: New Property Added After Probate Decision (§ 15.404/ § 30.251) and Incorrectly Included Property (§ 15.405/§ 30.252) A Tribe supported the proposed process for reconsideration of a distribution order directing distribution of additional property or modifying distribution, rather than requiring parties to appeal a final order. Response: The final rule includes the proposed process for reconsideration of the distribution order and clarifies that if an interested party raises an inventory dispute in the petition for reconsideration, the judge may order that the distribution order be vacated and remand BIA’s petition to the BIA to resolve the inventory dispute. See § 30.253(f) An individual stated that the regulations that were in place prior to the enactment of AIPRA worked fine by allowing for administrative modifications. Response: The regulations that were in place prior to the enactment of AIPRA are no longer relevant because enactment of AIPRA changed the legal landscape. An individual stated that the probate decision should include verbiage stating that if any other property is later discovered that should have been part of the estate, then it must be distributed according to the decision, rather than having to reopen the case to add property. Response: Under AIPRA, property may pass differently depending on whether the property constitutes greater than or less than 5% of undivided interests. Specific will language, renunciations, special statutes, or approved Tribal probate codes may also lead to property passing differently than set out in a decision. Judges direct distribution of property specifically identified in the inventory. Adopting the approach suggested by the commenter would put BIA, rather than the judge, in the position of having to determine the appropriate distribution. An individual suggested adding a deadline for petitions to add or omit property from the inventory. Response: The final rule does not adopt this suggestion because imposing a limitation would result in inaccurate distributions and property that is never distributed. An individual suggested adding ‘‘and/ or minerals only estates’’ following ‘‘trust or restricted land’’ in § 15.404(a)(1). Response: The final rule does not adopt this suggestion because minerals only estates are already included in VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 ‘‘trust or restricted land’’ for purposes of this section. An individual stated that ‘‘trust or restricted property’’ is used in § 30.251 for the first time in the proposed rule and suggested using ‘‘trust or restricted land’’ for consistency. Response: The current regulations and final rule define both ‘‘trust property’’ and ‘‘restricted property.’’ ‘‘Trust land’’ is used in some instances to distinguish from ‘‘trust property’’ because ‘‘trust property’’ includes personalty. An individual requested clarification of the phrase ‘‘a certification that all interested parties have been associated to the case and their names and addresses are current’’ that appears in § 15.404(a)(5), § 15.405(a)(4), § 30.251(b)(5), and § 30.252(b)(4). Response: The certification the commenter is inquiring about is certification from the BIA to OHA that all the interested parties have been associated to (i.e., identified as interested parties in) that particular case in the Department’s probate system. No change was made to the rule to clarify because the language relates to an internal Departmental procedure. An individual noted that § 30.252 appears to repeat the process covered in § 15.405(a). Response: Part 15 addresses BIA processes, while Part 30 addresses OHA processes; each has a role in the process as set out in the applicable part. An individual suggested an edit to § 30.252(b) to clarify who is petitioning for the removal of property and who is reviewing the petition. Response: The final rule changes the pronoun ‘‘it’’ to ‘‘BIA’’ to clarify that BIA removes the property then petitions OHA for an order addressing any changes in distribution resulting from the correction. An individual requested adding a provision to § 30.252(d) requiring BIA to suspend further distribution of the estate during reopening and suspend any changes to title to the underlying property during the reopening proceeding. Response: The Department determined that the suspension of the estate distribution while awaiting OHA’s determination is more suited to internal procedures and is considering possible modifications therein. An individual requested adding a provision to § 30.252 to require the judge to notify interested parties of the determination to reopen. Response: Notifications to interested parties are provided in § 30.252(e). An individual provided a personal account of a probate in which they believe errors in the inventory of PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 decedent’s land resulted in loss of an inheritance. Response: The procedures in these regulations provide safeguards to allow for corrections to estate inventories. M. Purchase at Probate (Subpart M) An individual stated that changes to the purchase at probate process in the regulations must be preceded by substantive amendments to AIPRA. Response: AIPRA’s existing provisions authorize purchase at probate, which these regulations implement. A commenter stated that the proposed rule would eliminate the right of ‘‘eligible purchasers’’ to notice when OHA receives a request to purchase at probate and would put the onus on them to tell BIA that they wish to be told of such purchase offers. The commenter objected saying the approach undermines basic concepts of justice and fair play. Another individual commenter also stated that all eligible purchasers should be kept notified by mail. Response: Neither the proposed nor final rule would eliminate the right of eligible purchasers to notice; rather, the proposed and final rule add an opportunity for co-owners to receive mailed notice when they otherwise would not have. Mailed notice of the probate hearing includes an attached inventory of a decedent’s interests in trust or restricted land, and notifies recipients of the possibility of purchase at probate of those interests. See § 30.214(g). AIPRA requires that such notice be mailed only to three groups: Eligible heirs, other devisees, and the Indian Tribe with jurisdiction over the interest. See 25 U.S.C. 2206(o)(4). • An heir is any individual or entity eligible to receive property from a decedent in an intestate proceeding. • A devisee is a person or entity that receives property under a will. An ‘‘eligible purchaser’’ by contrast, is one of the following: • An heir or devisee who is receiving an interest in the same parcel of land; • Any co-owner, • The Tribe with jurisdiction over the parcel containing the interest, or • The Secretary on behalf of the Tribe. See 25 U.S.C 2206(o)(2). Co-owners are eligible purchasers, but are heirs only in certain limited circumstances. In cases in which the coowners are also heirs, the co-owners will receive mailed notice (of both the hearing and the opportunity to purchase). If co-owners are not heirs, OHA is not statutorily required to send written notice to those co-owners and doing so would significantly delay the E:\FR\FM\20DER2.SGM 20DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations resolution of cases. See 25 U.S.C. 2206(o)(4)(B). Instead, under the current process and the proposed and final rule process, co-owners who are not heirs receive notice of a probate proceeding through posting. The proposed and final rule provide an opportunity for coowners who are not heirs to receive notice. Co-owners may receive mailed notice simply by notifying BIA in writing that they wish to receive it. See § 30.413(b)(5). This opportunity for notice is beyond what is required by the statute and what is provided for in the current regulations. An individual commenter expressed concern with the proposed rule’s approach to consent for purchase at probate in § 30.403, noting that the proposed rule would place the responsibility on the heir or devisee to state their unwillingness to sell the property. Response: The final rule adds provisions to make clear that the heir or devisee must affirmatively consent in order for a purchase at probate to occur (rather than state their unwillingness to sell the property to stop a purchase at probate from occurring). The final rule also explicitly states that consent may not be presumed. An individual objected to the ability of the Tribe to purchase without consent when decedent’s interest at the time of death was less than 5 percent of the entire undivided ownership of the land. This individual also opposed that the Secretary can give Tribes the resources to purchase the interest but does not extend that financial support to individual heirs and devisees. Another individual also stated that it is not fair to allow the Secretary to provide financial assistance only to the Tribe to purchase at probate and not individual heirs and devisees. Response: The provision allowing the Tribe to purchase without consent when the decedent’s interest at the time of death was less than 5 percent of the entire undivided ownership of the land and the provision allowing the Secretary to provide resources to the Tribe for the purchase are statutory provisions that are not being changed by these regulations. See 25 U.S.C. 2206(o)(5). Under the statute and regulations, if the heir or surviving spouse is a member of or eligible for membership in the Tribe, then consent is required. No statutory authority exists for the Secretary to provide resources to individuals who wish to purchase property at probate. An individual asked whether purchase at probate requires a majority consent of the heirs and devisees or if each individual heir and devisee must consent to sell his or her interest. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 Response: Each heir and devisee must consent for their interest to be purchased at probate, under both the current regulations and this final rule. A Tribe stated that the regulations should apply the valuation of mineral interests used in Interior’s Land BuyBack Program to purchase at probate of minerals-only interests. Response: Under AIPRA, a judge may not approve a purchase at probate for less than fair market value of the real property interest. See 25 U.S.C. 2206(o)(4)(A). Interior’s Land Buy-Back Program for Tribal Nations is a specific time-limited program that is working under particular authorizations which do not apply to probate. An individual stated that individual Indians who are members of the Tribe with jurisdiction over the land and who own a majority of the interests in a tract or the largest individual interest should have either the first option to purchase or a right of first refusal to purchase any other undivided interest in the tract. Response: Individuals who own an undivided interest in a tract of land can seek to purchase their co-owners’ interests at any time, outside of probate. Purchase at probate provides no benefit to co-owner purchasers over purchasing during the decedent’s lifetime, as each seller’s consent is still required. AIPRA does not provide authority for the regulations to grant a first option to purchase or right or first refusal to Tribal members. AIPRA does at times allow the heir or devisee to select the purchaser, however. See, e.g., 25 U.S.C. 2206(o)(3)(B). An individual stated that the U.S. Government should ensure that heirs are aware of Tribal governments’ ability to purchase property and outline the heirs’ right to oppose the sale. Response: AIPRA provides that the Tribe with jurisdiction is an eligible purchaser. The judge will ensure that heirs or devisees are aware of the purchase process through written decisions and orders issued in a particular case. The judge will notify heirs or devisees as to whether consent is required. Heirs or devisees who disagree with a finding that their consent to a purchase is not required can challenge that finding by seeking rehearing. This individual asserted that her Tribe does not have the authority to participate in purchase at probate because the Tribe’s constitution includes a provision stating that the Tribe may not regulate the inheritance of allotted lands within the Tribe’s jurisdiction. Response: A Tribe’s participation in purchase at probate as an eligible PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 72073 purchaser is substantively distinct from a Tribe’s action to regulate the inheritance of property. N. Miscellaneous One individual stated that the proposed rule’s attempt to define how trust personalty will be distributed in § 30.507 is an impermissible attempt to address a defect in the legislation through regulations. Response: The proposed and final rule at § 30.507 fill a gap using the Secretary’s authority where the statute is silent. A Tribe expressed support for the proposed change clarifying joint tenancy will be presumed in § 30.501 where a testator devised their interest to more than one person. Response: The final rule includes this proposed change. One individual asked how BIA and OHA identify the property that is included in the estate, and whether it includes land and mineral rights and IIM accounts. Response: In preparing for the probate process, BIA checks the system of record for land, which includes all trust or restricted land and mineral interests, and checks the Trust Funds Accounting System (TFAS) to determine the IIM account assets on record held by decedent. A commenter stated that there should be language in the regulations for how a valuation is conducted and the expertise needed to issue a valuation. Response: These regulations are specific to probate; in this context, valuation is relevant to purchase at probate. The final rule adopts the proposed rule’s language at § 30. 411(a) requiring compliance with USPAP or other approved valuation method. One Tribe and one individual recommended establishing and enforcing timelines for completion of the probate process to improve timeliness. Response: The completion of a probate is dependent on many factors that are outside of BIA and OHA’s control including the cooperation of the family in providing documentation for the probate file. These factors, along with the varying levels of complexity among probate cases prevent the Department from imposing specific timeframes. An individual requested the regulations include a policy to protect individual Indians’ property from being taken by Tribal governments and others and noted that the BIA mission includes protection of trust assets of American Indians. E:\FR\FM\20DER2.SGM 20DER2 khammond on DSKJM1Z7X2PROD with RULES2 72074 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Response: The BIA strives to meet its mission in all aspects of the services it provides to individual Indians and Tribes. To the extent that the commenter is requesting that BIA refuse to allow Tribes to purchase interests at probate, the Department is unable to adopt this suggested approach because it would be contrary to direction provided by Congress in AIPRA. A few individuals stated that Federal policy is being geared to benefit Tribes over individual Indians. Response: The final rule does not benefit Tribes over individual Indians in any manner beyond what is required to implement the statute. An individual suggested that the Federal Government should provide ongoing information about AIPRA to Tribal citizens. Response: The Department provides information on AIPRA and the probate process at https://www.bia.gov/bia/ots/ dop/your-land. A Tribe requested confirmation that the rule does not affect its Secretarially approved inheritance code. Response: These regulatory changes do not affect Secretarially approved Tribal probate codes. The Department intends to continue honoring and applying those Secretarially approved Tribal probate codes. An individual requested adding to § 15.202(b)(6), addressing what must be included in the probate file if the estate includes only cash, provisions similar to (a)(12) (‘‘Documentation of any payments made on requests filed under the provisions of § 15.301 [Funds for funeral services]’’) and (a)(13) (‘‘All the documents acquired under § 15.105’’). Response: The final rule adds these provisions as suggested. A commenter stated that a copy of the probate file should be sent to each interested party along with the notice of hearing. Response: This comment relates to § 15.504 in the current regulations, which was not proposed for change and is not being changed. The Department allows interested parties access to probate files, but does not automatically send copies of the files to every interested party because doing so would not be efficient and would risk disclosure of personally identifiable information. An individual stated that BIA should have to correct their errors in front of affected family and the judge. Response: Property is not added or removed to an estate as a result of corrections of mistakes on inventories under this section, but because of a situation such as where the decedent inherits additional property or there was VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 a probate order change for a predeceased decedent. A few individuals commented with requests for BIA to store wills or assist individuals with writing wills. One individual asked how BIA obtains access to wills to probate them. Response: These regulations do not address storage or writing of wills. BIA no longer assists individuals with writing wills and relies on family members to provide the decedents’ wills. It is each testator’s choice to communicate to family members where the will is located and how to gain access to it. A commenter stated that interested parties have a right to legal counsel but many do not have access to legal counsel either because they cannot afford or cannot find counsel with experience in the field of Federal probate. This commenter stated that the lack of access to counsel combined with the complexity of Indian probate limits due process. Response: Nothing in these regulatory changes affects interested parties’ right or ability to engage legal counsel in a probate case. OHA makes every effort to provide due process to interested parties, including unrepresented parties, in probate cases. Several individuals commented on aspects of AIPRA, such as the single heir rule and whether adopted children should be considered heirs, that are not affected by these regulations. Response: Nothing in these regulatory changes affects the single heir rule or whether adopted children are considered heirs. The Department encourages individuals who would like to provide their trust or restricted property to certain people to either write a will or convey that property through a gift deed during their lifetime; otherwise, the land will pass by intestate succession according to applicable law. IV. Overview of Final Rule The Department is finalizing revisions to its regulations governing probate to provide due process while allowing probate cases to be closed so that distribution to heirs and devisees may occur more quickly. Each open probate case has the potential to create ripple effects of uncertainty as heirs and devisees become decedents themselves. The Department recognizes both the financial and emotional toll open probate cases take on families and, with this final rule, aims to provide certainty for families and future generations more expeditiously. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 A. Summary of Final Rule This final rule makes a number of changes throughout the probate regulations to eliminate ambiguities and procedural delays. Specifically, the rule: • Overhauls the process and criteria for summary probate proceedings, to establish a process for very small estates, to include estates that contain no interests in trust or restricted land and that include only funds (no other trust personalty) of $300 or less. The expedited process for these small estates will allow OHA to adjudicate the cases based on the probate file alone, while allowing anyone adversely affected by the decision a limited time to seek review. • Eliminates the need for the judge to determine the status of eligible heirs or devisees as Indian when not relevant to the probate decision; • Allows OHA to issue a correction order to correct non-substantive and typographical errors without reopening the probate case; • Revises processes for adding and removing property from an estate inventory when it is discovered after issuance of the probate decision that additional property must be added to an estate inventory or that property was incorrectly included in the estate inventory, and revises processes for challenging these types of decisions through reconsideration rather than appeal to the IBIA; • Allows heirs and devisees to renounce their interests at hearings (having their written declarations acknowledged before a judge) and allows them to renounce not just prior to issuance of the probate decision, but also within 30 days of the decision, upon rehearing, or when additional property is added to the decedent’s estate. The final rule also includes revisions to expand notice to interested parties to provide that, in addition to mailing notice to heirs and devisees and others listed in § 30.114, OHA: • Will post notice of formal probate proceedings on its website; • Will physically post notice at the agency location or, if the agency office is closed or inaccessible, at a conspicuous location near the agency; and • May cause notice to be published in a local newspaper or other publication if the judge determines that additional notice is appropriate. The rule’s requirement for OHA to post on its website accommodates the increased use of telephonic and other alternatives to in-person hearings, which are occurring and are anticipated E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 to continue to occur as a result of technological advances. Posting notice on OHA’s website also establishes one location that is available for anyone to access regardless of residency. The final rule clarifies terminology and states what happens when various eventualities arise, which will help judges decisively address the issues and provide clarity for heirs and devisees throughout the process. For example, the rule delineates: • That there is one probate ‘‘decision,’’ which results from the summary probate proceeding or formal probate proceeding, and all other written rulings issued by judges are ‘‘orders,’’ such as an order on rehearing, an order on reopening, or a distribution order; • The evidence a judge may rely on to presume that an individual has died and their date of death; • How a judge will partition an allotment when a will attempts to divide an allotment into two or more distinct portions and devises at least one of those portions; • Who receives personal, mailed notice of a formal probate proceeding and how public notice is posted; • Rehearing and reopening processes and how they relate to each other; • The meanings of joint tenancy and tenants-in-common and how the presumption of joint tenancy and the anti-lapse provision each operate in the determination of heirs and devisees; • How trust personalty will be distributed when there are no eligible family heirs, and when there are either no land interests in the decedent’s estate or there are land interests within the jurisdiction of more than one Tribe. The final rule also overhauls the purchase at probate process. The current purchase at probate provisions are unwieldy in their fit with the formal probate proceedings and result in probate cases being kept open indefinitely while the purchase at probate process, including appraisals/ valuations, continues. Additionally, because the current provisions require the purchase at probate to be completed before the probate decision is issued, purchases at probate are completed based on provisional heirs and devisees, which causes uncertainty and increases the chance of having to redo the already-lengthy process. This final rule instead sequences the purchase at probate process to allow the probate to be closed, while the purchase at probate continues, as follows: • The eligible purchaser may request to purchase at any time before the completion of the first probate hearing (including at the hearing) or within 30 days of the distribution order mailing date, when requesting to purchase property newly added to the inventory. • If the request is still pending at the time the probate decision is issued and is not denied in the decision, OHA then includes in the probate decision (or reconsideration order if property was added) a list of all the purchase at probate requests that have been submitted, direction to BIA to obtain an appraisal/valuation of the interest, and direction to heirs or devisees on how to consent if they wish to do so. The property is distributed and any property subject to the purchase at probate 72075 request is conveyed with an encumbrance. • If consent is needed for the purchase, BIA holds off on ordering the appraisal/valuation until at least one heir or devisee has filed the written notification that the heir or devisee would consider selling the interest. • BIA obtains the appraisal/valuation. • BIA files a Petition to Complete Purchase at Probate, and OHA issues an Order to Submit Bids to all potential bidders that includes the fair market value. • Anyone who may be affected by the determination of the fair market value may object to the fair market value stated in the Order to Submit Bids by filing a written objection with OHA within 45 days. • OHA determines whether the bid is successful based on whether the bid was timely, equal to or greater than the fair market value, and, when consent is required for the purchase, the applicable heir, devisee, or surviving spouse accepts the bid. • OHA notifies parties of the successful bid. • The successful bidder pays for the interest purchased and the interest transfers. • Any interested party who is adversely affected by the judge’s order to approve or disapprove the purchase at probate may appeal to the IBIA within 30 days of the order. B. Changes From Proposed Rule to Final Rule The final rule makes the following changes to the proposed rule. Section Topic Change final rule makes to proposed rule § 15.202(b) ......... Items included in the probate file .. § 15.301(a) ......... § 30.101 ............. Funds for funeral services from decedent’s IIM account. Definitions ...................................... § 30.114 ............. Notice to co-owners ....................... § 30.180 ............. Renunciations ................................ § 30.183 ............. Renunciation .................................. § 30.186 ............. Renunciation .................................. § 30.211 ............. Public notice of formal probate proceeding. Adds a missing word ‘‘in’’ in the introductory language of paragraph (b). Adds new paragraphs (b)(7) and (b)(8) in response to comment. Adds a new paragraph (a)(2) regarding payment of funeral expenses by the decedent’s Tribe, in response to comment. Adds a new definition for ‘‘co-owner’’ in response to comment. Deletes definition of ‘‘extenuating circumstances’’ because the provision in which that phrase was used has been deleted in response to comment. Deletes from definition of ‘‘interested party’’ the phrase ‘‘except for potential or actual heirs who may or will inherit solely as co-owners of an allotment’’ because that was removed from § 30.114 in response to comment. Deletes proposed provision requiring potential heirs who may inherit solely as co-owners to file a request for notice, in response to comment. Adds new paragraph (b) to make explicit that entities may renounce, in response to comment. Replaces phrase in paragraph (b) with newly defined term ‘‘co-owner,’’ the definition for which was added in response to comment. Adds reference to a ‘‘Tribal resolution’’ to make explicit how a Tribe may renounce, in response to comment. Adds a new paragraph (b) to provide that a judge may also cause notice to be published in a local newspaper, in response to comment. (Updated appropriate citations) Revises proposed paragraph (e) (final paragraph (f)) to require physical posting at the agency or, if posting at the agency is not possible because the agency office is closed or inaccessible, posting in a conspicuous place near that agency, in response to comment. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 72076 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Section Topic § 30.214 ............. § 30.241 ............. Contents of notice regarding purchase at probate. Rehearing ....................................... § 30.243 ............. § 30.248 ............. Reopening ...................................... Decision on reopening ................... § 30.251 ............. Identification of additional property after probate decision. Identification of incorrectly included property after probate decision. Reconsideration of distribution order. § 30.252 ............. § 30.253 ............. Change final rule makes to proposed rule § 30.401 ............. Who may purchase at probate ...... § 30.404 ............. Consent in purchase at probate .... § 30.409 ............. Effect of purchase at probate on distribution. Continuation of purchase at probate process. Potential bidders in purchase at probate. Payment for purchase at probate .. Law applicable when decedent dies intestate. § 30.410 ............. § 30.413 ............. § 30.418 ............. § 30.506 ............. C. Crosswalk of Current Regulation to New Regulation The following chart provides a highlevel crosswalk of the current regulatory Adds reference to Federal law or Secretarially approved Tribal probate codes. Adds a clarification that successive petitions may not be filed ‘‘in the same probate case’’ in response to comment. Adds in paragraph (a) that the petition for reopening must be filed with the judge. Clarifies in paragraph (a)(2) that the petition may be summarily dismissed if it ‘‘raises issues or objections that were previously addressed’’ rather than requesting the same relief, for clarification. Updates citation in paragraph (a)(5). Clarifies in paragraph (e)(4) that the right of reconsideration must allege an error in the inventory of additional property, rather than the original inventory. Clarifies that BIA removes property from the estate inventory in paragraph (b). Adds a new paragraph (f) to clarify that the judge may vacate the distribution order and remand to the BIA. Clarifies in final paragraphs (g) and (h) the ‘‘final order on reconsideration’’ to distinguish from the distribution order. Replaces phrase with the newly defined term ‘‘co-owner,’’ the definition for which was added in response to comment. Adds new paragraphs (b) through (d) to clarify how an heir or devisee may consent to purchase at probate, that consent will not be presumed, and that an heir or devisee may withdraw consent any time before the purchase is final. Adds clarification that the decision or distribution order will identify the interest that is subject to a pending request for purchase at probate. Corrects a typographical error to change ‘‘approval/valuation’’ to ‘‘appraisal/valuation.’’ Replaces phrase in (b)(5) with the newly defined term ‘‘co-owner,’’ the definition for which was added in response to comment. Clarifies the successful bidder ‘‘must’’ make payment. Replaces the phrase ‘‘co-owners of the parcel’’ in (b)(1) and (2) with the newly defined term ‘‘co-owners,’’ the definition for which was added in response to comment. provisions as compared to the new and revised provisions established by this final rule. Sections not listed in the Current § New § Summary of changes 15.202 What items must the agency include in the probate file? 15.202 What items must the agency include in the probate file? 15.301 May I receive funds from the decedent’s IIM account for funeral services? 15.301 May I receive funds from the decedent’s IIM account for funeral services? N/A 15.404 What happens if BIA identifies additional property of a decedent after the probate decision is issued? 15.405 What happens if BIA identifies that property was incorrectly included in a decedent’s inventory? N/A ‘‘current’’ column are unaffected by this final rule. In 25 CFR part 15: Redesignates paragraphs and adds a new paragraph (b) to establish a more limited universe of documents required to be included in estates that will be subject to a summary probate proceeding (i.e., estates with no land and $300 or less in funds). Also adds a new paragraph (a)(16) to address the need for the probate file to include valuation reports in the limited circumstances in which a special statute applies that requires the valuation report. Increases the amount that may be requested and approved for distribution from a decedent’s IIM account to pay for funeral expenses from $1,000 to $5,000. Also deletes requirement for the IIM account to contain at least $2,500 and clarifies that funds, if approved, are taken from the balance of the account as of the date of death. New section. New section. In 43 CFR part 30: khammond on DSKJM1Z7X2PROD with RULES2 Current § New § 30.100 How do I use this part? 30.101 What definitions do I need to know? VerDate Sep<11>2014 18:22 Dec 17, 2021 Summary of changes 30.100 How do I use this part? 30.101 What definitions do I need to know? Jkt 256001 PO 00000 Frm 00010 Fmt 4701 Updates citations (no substantive change). Deletes definitions of ‘‘BLM’’ and ‘‘de novo review’’ because they are no longer used. Revises the definitions of ‘‘ADM’’ to delete reference to de novo review, ‘‘decision’’ to clarify that there is a single probate decision, ‘‘Indian probate Judge’’ to reflect that the judges exercise delegated authority, and ‘‘summary probate proceeding’’ to reflect the new approach to these proceedings. Adds definitions for ‘‘co-owner,’’ ‘‘distribution order,’’ ‘‘home agency,’’ ‘‘joint tenancy,’’ ‘‘lineal descendant,’’ ‘‘order,’’ ‘‘Petition to Complete Purchase at Probate,’’ and ‘‘tenants in common.’’ Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Current § New § Summary of changes 30.114 Will I receive notice of the probate proceeding? 30.114 Will I receive notice of the probate proceeding? 30.123 Will the judge determine matters of status and nationality? 30.123 Will the judge determine matters of status and nationality? 30.124 When may a judge make a finding of death? 30.124 When may a judge make a finding of death? 30.125 May a judge reopen a probate case to correct errors and omissions? N/A 30.129 May a judge reopen a probate case to correct errors and omissions? 30.125 May a judge order that a property interest be partitioned as a result of a devise? 30.235 What will the judge’s decision in a formal probate proceeding contain? 30.250 May a correction order be issued to correct typographical and other non-substantive errors? 30.251 What happens if BIA identifies additional property of a decedent after a decision is issued? 30.252 What happens if BIA identifies that property was incorrectly included in a decedent’s inventory? Deletes provisions in current paragraph (b) regarding requesting a formal probate proceeding in lieu of a summary probate proceeding because, with the proposed revisions to the summary probate proceeding elsewhere in the proposed rule, this provision is no longer applicable. Adds ‘‘if relevant’’ so that a judge is not required to determine the status of eligible heirs or devisees as Indian if their status is not relevant in the probate case. Revises to list specific evidence that will support a presumption that an heir, devisee, or person for whom a probate case has been opened has died and the date of death. Also establishes what evidence will rebut the presumption. Redesignated to follow other section on correcting errors in ‘‘Judicial Authority’’ subpart. No substantive change. New section. 30.235 What will the judge’s decision in a formal probate proceeding contain? N/A 30.126 What happens if property was omitted from the inventory of the estate? 30.127 What happens if property was improperly included in the inventory? N/A Subpart G—Purchase at Probate 30.253 What happens if a request for reconsideration of a distribution order is timely made? Subpart M—Purchase at Probate 30.160 What may be purchased at probate? 30.400 What may be purchased at probate? 30.161 30.401 Who may purchase at probate? 30.402 Does property purchased at probate remain in trust or restricted status? 30.403 Is consent required for a purchase at probate? Who may purchase at probate? 30.162 Does property purchased at probate remain in trust or restricted status? 30.163 Is consent required for a purchase at probate? 30.164 What must I do to purchase at probate? N/A N/A 30.165 quest 30.166 quest N/A Who will OHA notify of a reto purchase at probate? What will the notice of the reto purchase at probate include? N/A 30.167 How does OHA decide whether to approve a purchase at probate? khammond on DSKJM1Z7X2PROD with RULES2 72077 30.168 How will the judge allocate the proceeds from a sale? VerDate Sep<11>2014 18:22 Dec 17, 2021 30.404 How do I initiate a purchase at probate? 30.405 When may I initiate a purchase at probate? 30.406 May I withdraw my request to purchase at probate? 30.407 How will OHA address requests to purchase at probate? 30.408 What will OHA include in the probate decision or reconsideration order when a purchase at probate is pending? 30.409 How will a pending purchase at probate request affect how the decedent’s property is distributed? 30.410 How will the purchase at probate process continue after the decision or reconsideration order is issued? 30.411 How will the interests to be purchased at probate be valued? 30.416 How does OHA decide whether a bid is successful? (see 30.419, listed below) Jkt 256001 PO 00000 Frm 00011 Fmt 4701 Adds ‘‘if relevant’’ so that a judge’s decision need not include the status of eligible heirs or devisees as Indian if their status is not relevant in the probate case. New section. Clarifies what information BIA must provide to OHA in support of the petition to add the property, and provides that the judge will issue a distribution order of the additional property. Clarifies what information BIA must provide to OHA in support of the petition to remove the property, and provides that the judge will issue a distribution order that addresses any modifications to the distribution of the decedent’s property resulting from the correction of the inventory. New section. Adds a process to allow interested parties to seek reconsideration of the distribution order. Revises this subpart overall to streamline the process for purchasing decedent’s interests at probate using the statutory authority in the American Indian Probate Reform Act. Adds a provision regarding purchase of minerals-only interests at probate. Deletes provision regarding timing of requesting a purchase at probate (addressed in proposed § 30.404). No substantive change. No change. Adds that, to purchase any interest included in an approved consolidation agreement, the consent of the recipient of the consolidated interest is required. Adds new paragraphs (b) through (d), establishing procedures for heirs and devisees to consent to a purchase at probate, that consent will not be presumed, and that consent may be withdrawn. Adds to the conditions in which a Tribe does not need consent to purchase that the interest is not part of an approved consolidation agreement. Changes the deadline for filing a purchase request from before issuance of the final probate decision or order to instead before the end of the first probate hearing. New section. New section. Revisions to incorporate the purchase at probate process into the final probate decision or reconsideration order, since that final decision and order are provided to the heirs or devisees, BIA, and anyone who has submitted a request to purchase. New section. New section. Adds that BIA will obtain the appraisal or other fair market valuation and that any appraisal/valuation must be made on the basis of the fair market value as of the decedent’s date of death. Adds that the appraisal/valuation must state or include a certification that it is assessing the fair market value of the real property interest. Clarifies that OHA may hold a hearing and that the applicable heir, devisee, or surviving spouse may choose which bid to accept if multiple bids are submitted. Combines information on allocating proceeds with information on OHA issuing the order approving the sale. Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 72078 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Current § New § 30.169 What may I do if I do not agree with the appraised market value? 30.415 What may I do if I do not agree with the determination of fair market value in the Order to Submit Bids? 30.170 What may I do if I disagree with the judge’s determination to approve a purchase at probate? 30.171 What happens when the judge grants a request to purchase at probate? 30.423 What may I do if I disagree with the judge’s determination to approve or deny a purchase at probate. 30.412 What will OHA do when it receives BIA’s notification that an appraisal/valuation has been completed? 30.417 How does the judge notify the parties whether there was a successful bid? 30.413 Who are potential bidders? 30.414 What will be contained in the Order to Submit Bids? 30.418 When must the successful bidder pay for the interest purchased? 30.419 What happens after the successful bidder submits payment? 30.420 What happens if the successful bidder does not pay within 30 days? 30.421 When does a purchased interest vest in the purchaser? 30.422 What will happen to any lease income received or accrued from purchased land interests before the purchased interest vests in the purchaser? 30.424 When will the order approving or denying the purchase at probate become final? Subpart H—Renunciation of Interest 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? 30.181 When may I renounce a devised or inherited interest? 30.186 How do I renounce an inherited interest? 30.188 What steps will the judge take if I designate a recipient? N/A N/A 30.172 When must the successful bidder pay for the interest purchased? 30.173 What happens after the successful bidder submits payment? 30.174 What happens if the successful bidder does not pay within 30 days? 30.175 When does a purchased interest vest in the purchaser? N/A N/A Subpart H—Renunciation of Interest 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? 30.181 How do I renounce an inherited interest? N/A 30.184 Who may receive a renounced interest in trust personalty? 30.182 Who may renounce an inherited interest on behalf of an heir or devisee who dies before the hearing? 30.183 Who may receive a renounced interest in trust or restricted land if the land will pass pursuant to a valid will? 30.184 Who will receive a renounced interest in trust or restricted land if the land will pass by intestate succession? 30.185 Who may receive a renounced interest in trust personalty? 30.185 May my designated recipient refuse to accept the interest? 30.186 Are renunciations that predate the American Indian Probate Reform Act of 2004 valid? 30.187 May I revoke my renunciation? 30.189 May my designated recipient refuse to accept the interest? 30.190 Are renunciations that predate the American Indian Probate Reform Act of 2004 valid? 30.191 May I revoke my renunciation? 30.188 Does a renounced interest vest in the person who renounced it? 30.187 What happens if I do not designate any eligible individual or entity to receive the renounced interest? 30.192 Does a renounced interest vest in the person who renounced it? Subpart I—Summary Probate Proceedings 30.182 Who may receive a renounced interest in trust or restricted land? 30.183 Who may receive a renounced interest of less than 5 percent in trust or restricted land? khammond on DSKJM1Z7X2PROD with RULES2 Summary of changes Subpart I—Summary Probate Proceedings VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 PO 00000 Frm 00012 Fmt 4701 Expands who may object to a fair market value determination to include any party who may be affected by the determination. Combines time for filing an objection (30 days) and filing supporting documentation (15 days) into a deadline of 45 days for both. Requires objecting party to provide copies of the objection and supporting documents to parties who have an interest in the purchase of the property. Provides that the judge may issue a Modified Order to Submit Bids. Replaces process for objecting to the judge with a process for appealing to IBIA. Clarifies that OHA issues an Order to Submit Bids to all potential bidders, and that this occurs after the fair market value has been determined. New section. New section. No substantive change. Adds information on allocation of the proceeds of the sale. No substantive change. No substantive change. New section. New section. See below for specific sections. Adds clarification that entities may renounce. Splits into two sections. Expands when someone may renounce to allow renunciation 30 days after the probate decision is mailed, before the entry of an order on rehearing, or within 30 days after mailing of the distribution for additional property. Expands the manner in which someone may renounce to allow acknowledgment before either a notary or a judge, so that someone may renounce in person at a hearing. New section. Specifies who may renounce on behalf of an heir or devisee who dies before the hearing. Reorganizes these sections to distinguish based on whether the decedent had a will or not. No substantive change. Deletes paragraph (c) of the current section, which says the following, because it is not directly relevant to the probate process: ‘‘The Secretary will directly disburse and distribute trust personalty transferred by renunciation to a person or entity other than those listed in paragraph (b) of this section.’’ Adds a provision allowing the designated recipient the opportunity to refuse the interest. No change. Revised when a written renunciation becomes irrevocable to when the applicable order distributing the property becomes final, rather than when the judge enters the final order in the probate proceeding. Reorganizes to split into two sections. No substantive change. See specific sections below. Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 Current § New § Summary of changes 30.200 What is a summary probate proceeding? 30.200 What is a summary probate proceeding? 30.201 What does a notice of a summary probate proceeding contain? 30.206 What notice of the summary probate decision will the judge or ADM provide? 30.202 May I file a claim or renounce or disclaim an interest in the estate in a summary probate proceeding? N/A 30.201 May I file a claim in a summary probate proceeding? N/A 30.203 May I request that a formal probate proceeding be conducted instead of a summary probate proceeding? 30.204 What must a summary probate decision contain? 30.203 What will happen if the funds in the estate are insufficient to provide each heir or devisee at least one cent? 30.204 May I request that a formal probate proceeding be conducted instead of a summary probate proceeding? 30.205 What must a summary probate decision contain? 30.205 How do I seek review of a summary probate proceeding? 30.206 What happens after I file a request for de novo review? 30.207 How do I seek review of a summary probate proceeding? 30.208 What happens after I file a request for review? 30.207 What happens if nobody files for de novo review? 30.209 What will the judge or ADM do with the official record of the summary probate case? Subpart J—Formal Probate Proceedings 30.210 How will I receive personal notice of the formal probate proceeding? 30.211 Will the notice be published in a newspaper? Subpart J—Formal Probate Proceedings 30.210 How will I receive personal notice of the formal probate proceeding? 30.211 How will OHA provide public notice of the formal probate proceeding? 30.214 What must a notice of hearing contain? 30.214 What must a notice of hearing contain? 30.238 May I file a petition for rehearing if I disagree with the judge’s decision in a formal probate hearing? 30.238 May I file a petition for rehearing if I disagree with the judge’s decision in a formal probate hearing? 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? VerDate Sep<11>2014 18:22 Dec 17, 2021 30.202 What will happen when OHA receives the summary probate file? Jkt 256001 PO 00000 Frm 00013 72079 Fmt 4701 Deletes that the supervising judge may determine whether the proceeding is conducted by a judge or ADM because this is an internal procedure. Changes the qualification for summary probate proceedings from funds-only estates with a value of $5,000 or less to funds-only estates with a value of $300 or less. Specifies what funds are considered in determining the value of the estate. Changes the notice provided to be notice of the summary probate decision and right to challenge the decision because the proposed rule eliminates the option for a hearing and claims renunciations from the summary probate proceeding. Deletes reference to renunciations because the option to renounce will now occur after the summary probate decision is issued. Revises to disallow claims in summary probate proceedings because the estate value is only $300 or less. New section. Provides that OHA determines the distribution of estates under summary probate proceedings based on the information included in the probate file. New section. Clarifies that if the funds in the estate are insufficient to provide all heirs or devisees with one cent, then the oldest heir or devisee receives all the funds. Revises to eliminate the option for requesting the summary probate be conducted as a formal probate proceeding because the estate value is so small. Reorganizes. Deletes reference to a proposed decision, because the judge decides the case without first releasing a proposed decision. Deletes references to claims. Adds that determination of ‘‘Indian’’ status is necessary only if relevant. Allows renunciation for 30 days after the mailing date of the decision (or within 30 days of an order on review, if applicable). Adds a statement that a formal probate proceeding will be initiated if BIA later identifies trust or restricted land that should have been included in the estate. Deletes reference to ‘‘de novo’’ review. Clarifies that BIA may also seek review. Lengthens the time OHA has to notify the agency that prepared the probate file, all other affected agencies, and all interested parties of the request for review from 10 days to 30 days of receipt of the request for review. No longer requires a hearing on review. Clarifies that the judge may issue an order affirming, modifying, or vacating the summary probate decision. Lists who the judge must distribute the final order to and what it must include. Allows appeal to the IBIA. Provides that OHA transmits the official record back to the agency originating the probate and lists what will be included in the record. Deletes provision requiring OHA to send copies to other affected agencies. (Section specifying that the order becomes final after 30 days is in proposed § 30.206(b)). See affected sections below. Reorganizes to group all mailed (personal) notice into one section and all public notice into a separate section. Clarifies that the will and codicils will be mailed with the notice of the proceeding. (Section 30.114 lists who receives mailed notice of the hearing). Allows the posted notice that supplements the mailed notice to contain information for more than one hearing and specifies the minimum information that must be included for each. Adds requirement for OHA to post notice of all hearings on its website. Adds that the judge may cause the notice to be published in a local newspaper or other publication to give judge discretion to post notice in places other than the OHA website (including in a newspaper, if appropriate), for the purpose of increasing the chances of reaching individuals or entities with an interest in a probate case. Adds a provision for physical posting at the decedent’s home agency. Clarifies that a posting in the vicinity of the designated place of hearing will occur only if OHA designates a specific hearing location and reduces the number of conspicuous places for posting from five to one. Adds that if physical posting at the agency office is not possible because the agency office is closed or inaccessible, then the notice must be physically posted at a conspicuous place near that agency. Adds to paragraph (g) a specification that the notice of possibilities of purchase and sale of trust or restricted property will be ‘‘in accordance with Federal law or Secretarially approved Tribal probate codes.’’ Specifies that you must be an interested party to seek a rehearing and the basis for your request must be to correct a substantive error. Expands on what issues may be raised and what evidence may be relied upon in rehearing. No change. Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 72080 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations Current § New § 30.240 How will the judge decide a petition for rehearing? 30.240 How will the judge decide a petition for rehearing? 30.241 May I submit another petition for rehearing? 30.242 When does the judge’s order on a petition for rehearing become final? 30.243 May a closed probate case be reopened? 30.241 May I submit another petition for rehearing? 30.242 When does the judge’s order on a petition for rehearing become final? 30.243 May a closed probate case be reopened? 30.244 When must a petition for reopening be filed? 30.245 What legal standard will be applied to reopen a case? 30.246 What must be included in a petition for reopening? 20.247 What is not appropriate for a petition for reopening? N/A 30.244 How will the judge decide my petition for reopening? 30.245 What happens if the judge reopens the case? 30.246 When will the decision on reopening become final? Subpart K—Miscellaneous 30.250 When does the anti-lapse provision apply? N/A 30.248 How will the judge decide my petition for reopening? 30.249 What happens when the judge issues an order on reopening? N/A 30.502 How does a judge resolve conflicts between the anti-lapse provision and presumption of joint tenancy? 30.503 What happens if an heir or devisee participates in the killing of the decedent? 30.504 May a judge allow fees for attorneys representing interested parties? 30.505 How must minors or other legal incompetents be represented? 30.506 When a decedent died intestate without heirs, what law applies to trust or restricted property? 30.251 What happens if an heir or devisee participates in the killing of the decedent? 30.252 May a judge allow fees for attorneys representing interested parties? 30.253 How must minors or other legal incompetents be represented? 30.254 What happens when a person dies without a valid will and has no heirs? N/A Subpart N—Miscellaneous 30.500 When does the anti-lapse provision apply? 30.501 When is joint tenancy presumed? 30.507 How will trust personalty be distributed if a decedent died intestate on or after June 20, 2006, and the Act does not specify how the trust personalty should be distributed? V. Procedural Requirements khammond on DSKJM1Z7X2PROD with RULES2 Summary of changes A. Regulatory Planning and Review (E.O. 12866 and 13563) Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 Clarifies that the judge will consider the petition for rehearing as a petition for reopening if not timely filed. Adds provision allowing the judge to summarily deny the petition based on certain deficiencies. No substantive change. Moves information regarding the judge’s jurisdiction to § 30.242. Includes information on when the jurisdiction of the judge terminates. Deletes the chart and states by whom and the circumstances in which a closed probate case may be reopened. Splits provisions regarding deadlines for filing petitions to reopening to proposed § 30.244 to simplify the deadline to one year after discovery of the error. Clarifies that the 3-year threshold is important only with regard to the heightened legal standard that is applied to the petition to reopen after 3 years. Expands on what information must be included in a petition for reopening to justify reopening. New section. Clarifies what issues or objections a petition may not raise and what evidence a petition may not rely upon for a reopening, to encourage parties to address issues and bring evidence during the initial probate proceeding. Adds provision allowing the judge to summarily deny the petition based on certain deficiencies. Combines two sections. No substantive change. See affected sections below. Redesignated. No change. New section. Establishes that joint tenancy will be presumed where a testator devises the same interests to more than one person without specifying otherwise. New section. Clarifies that the judge will give priority to the presumption of joint tenancy, such that the share of the deceased devisee will go to the surviving devisees (rather than to the deceased devisee’s descendants). Redesignated. No change. Redesignated. No change. Redesignated. No change. Deletes chart. Reorganizes based on whether the decedent died before or after the date of AIPRA’s enactment. Adds detail as to how interests will be distributed under the statute in each case, rather than just citing the statutory provisions. New section. Specifies how trust personalty is distributed in the circumstance in which AIPRA applies but fails to state how trust personalty is distributed: If the decedent has no surviving spouse or eligible heirs or trust or restricted property over which one and only one Tribe has jurisdiction. these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements B. Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule affects only individuals’ estates and does not affect small entities. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rulemaking under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million or more because this rule addresses only the transfer through probate of individuals’ property held in trust or restricted status. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because this rule affects only probates of individuals’ trust or restricted property. (c) Does not have significant adverse effects on competition, employment, E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects only affects only probates of individuals’ trust or restricted property. D. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. E. Takings (E.O. 12630) This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rulemaking, if adopted, does not affect individual property rights protected by the Fifth Amendment or involve a compensable ‘‘taking.’’ A takings implication assessment is not required. F. Federalism (E.O. 13132) Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement because the rule affects only the probate of individuals’ trust or restricted property. A federalism summary impact statement is not required. khammond on DSKJM1Z7X2PROD with RULES2 G. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. H. Consultation With Indian Tribes (E.O. 13175) The Department of the Interior strives to strengthen its government-togovernment relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to selfgovernance and Tribal sovereignty. We have evaluated this rule under the Department’s consultation policy and under the criteria in Executive Order 13175 and have determined that it has VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 substantial direct effects on federally recognized Indian Tribes because the rule affects the probate of trust or restricted property held by individuals, many or most of whom are likely Tribal members. The Department therefore conducted Tribal consultation on this rule and has included responses to Tribal input in Section III. Proposed Rule Comments and Responses to Comments. I. Paperwork Reduction Act This rule does not contain any new collection of information that requires approval from the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. OMB has previously approved the information collection requirements associated with compiling the probate file for an estate and assigned the information collection requirements OMB Control Number 1076–0169 (expires 11/30/2021). We estimate the annual burden associated with this information collection to be 617,486 hours per year. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. J. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because these are ‘‘regulations . . . whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.’’ 43 CFR 46.210(i). We have also determined that the rulemaking does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. K. Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. List of Subjects 25 CFR Part 15 Estates, Indians—law. 43 CFR Part 30 Administrative practice and procedure, Claims, Estates, Indians, Lawyers. For the reasons given in the preamble, the Department of the Interior amends PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 72081 part 15 of title 25 and part 30 of title 43 of the Code of Federal Regulations as follows: Title 25—Indians Chapter I—Bureau of Indian Affairs, Department of the Interior PART 15—PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE NATION AND THE FIVE CIVILIZED TRIBES 1. The authority citation for part 15 continues to read as follows: ■ Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372–74, 410, 2201 et seq.; 44 U.S.C. 3101 et seq. Subpart C—Preparing the Probate File ■ 2. Revise § 15.202 to read as follows: § 15.202 What items must the agency include in the probate file? (a) We will include the items listed in this section in the probate file, except as specified in paragraph (b) of this section. (1) The evidence of death of the decedent as provided under § 15.104. (2) A completed ‘‘Data for Heirship Findings and Family History Form’’ or successor form, certified by BIA, with the enrollment or other identifying number shown for each potential heir or devisee. (3) Information provided by potential heirs, devisees, or the Tribes on: (i) Whether the heirs and devisees meet the definition of ‘‘Indian’’ for probate purposes, including enrollment or eligibility for enrollment in a Tribe; or (ii) Whether the potential heirs or devisees are within two degrees of consanguinity of an ‘‘Indian.’’ (4) If an individual qualifies as an Indian only because of ownership of a trust or restricted interest in land, the date on which the individual became the owner of the trust or restricted interest. (5) A certified inventory of trust or restricted land, including: (i) Accurate and adequate descriptions of all land; and (ii) Identification of any interests that represent less than 5 percent of the undivided interests in a parcel. (6) A statement showing the balance and the source of funds in the decedent’s IIM account on the date of death. (7) A statement showing all receipts and sources of income to and disbursements, if any, from the decedent’s IIM account after the date of death. E:\FR\FM\20DER2.SGM 20DER2 khammond on DSKJM1Z7X2PROD with RULES2 72082 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations (8) Originals or copies of all wills, codicils, and revocations that have been provided to us. (9) A copy of any statement or document concerning any wills, codicils, or revocations the BIA returned to the testator. (10) Any statement renouncing an interest in the estate that has been submitted to us, and the information necessary to identify any person receiving a renounced interest. (11) Claims of creditors that have been submitted to us under §§ 15.302 through 15.305, including documentation required by § 15.305. (12) Documentation of any payments made on requests filed under the provisions of § 15.301. (13) All the documents acquired under § 15.105. (14) The record of each Tribal or individual request to purchase a trust or restricted land interest at probate. (15) The record of any individual request for a consolidation agreement, including a description, such as an Individual/Tribal Interest Report, of any lands not part of the decedent’s estate that are proposed for inclusion in the consolidation agreement. (16) Valuation reports for those interests to which the special circumstances listed in 43 CFR 30.264 apply. (b) If the estate includes only cash and the total value of the estate does not exceed $300 on the date of death, including funds deposited and accruing on or before the date of death, then we will include only the following the probate file. (1) The evidence of death of the decedent as provided under § 15.104. (2) A completed ‘‘Data for Heirship Findings and Family History Form’’ or successor form, certified by BIA as an accurate summary of the information available to BIA that is relevant to the probate of the estate (this form should be completed with information provided by potential heirs, devisees, or Tribes to the greatest extent possible, but BIA is not required to obtain documentation in addition to that provided by those entities). (3) A statement showing the balance and the source of funds in the decedent’s IIM account on the date of death. (4) Certification that the decedent’s estate does not contain any interests in trust or restricted land. (5) Originals or copies of all wills, codicils, and revocations that have been provided to BIA. (6) A copy of any statement or document concerning any wills, VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 codicils, or revocations the BIA returned to the testator. (7) Documentation of any payments made on requests filed under the provisions of § 15.301. (8) All the documents acquired under § 15.105. Subpart D—Obtaining Emergency Assistance and Filing Claims 3. In § 15.301, revise the section heading and paragraphs (a) and (c) to read as follows: ■ § 15.301 May funds for funeral services be paid from the decedent’s IIM account? (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. * * * * * (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. * * * * * Subpart E—Probate Processing and Distributions 4. Add §§ 15.404 and 15.405 to read as follows: ■ § 15.404 What happens if BIA identifies additional property of a decedent after the probate decision is issued? If, after OHA issues the probate decision, BIA identifies additional trust or restricted property of a decedent that it had not already identified at the time of the decision, then BIA will submit a petition to OHA for an order directing distribution of the additional property. (a) The petition must identify the additional property and the source of that property (e.g., inheritance or approval of a deed) and must include the following: (1) A certified inventory describing the additional trust or restricted land, if PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 applicable, or, if the additional property is trust personalty, documents verifying the balance and source of the additional trust personalty, and a statement that the inventory lists only the property to be added; (2) A copy of the decision, or modification or distribution order and corresponding inventory issued in the probate case from which the property was inherited by the decedent, if applicable; (3) A statement identifying each newly added share of any allotment that increases the decedent’s total share of the ownership interest of the allotment to 5 percent or more; (4) A copy of BIA’s notification to the Tribes with jurisdiction over the interests of the list of the additional interests that represent less than 5 percent of the entire undivided ownership of each parcel (after being added to the decedent’s estate) under § 15.401(b); and (5) A certification that all interested parties have been associated to the case and their names and addresses are current. (b) BIA may submit the petition at any time after issuance of the decision. (c) BIA must send a copy of the petition and all supporting documentation to each interested party at the time of filing and include certification of service. § 15.405 What happens if BIA identifies that property was incorrectly included in a decedent’s inventory? If, after issuance of a decision, BIA identifies certain trust or restricted property or an interest therein that was incorrectly included in a decedent’s inventory, then BIA will submit a petition to OHA for an order notifying all heirs or devisees of the correction and addressing any changes in distribution of property resulting from the correction. (a) The petition must identify the property that it removed from the estate and explain why the property should not have been included, and must include the following: (1) A newly issued certified inventory describing the trust or restricted land remaining in decedent’s estate, if applicable; (2) A copy of the decision, or modification or distribution order and corresponding inventory issued in the probate case from which BIA discovered that the property was incorrectly included in the decedent’s estate, if applicable; (3) A statement identifying each property in the decedent’s estate that decreased to a total share of the E:\FR\FM\20DER2.SGM 20DER2 72083 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations ownership of the allotment to less than 5 percent as a result of the removal of property from the estate; and (4) A certification that all interested parties have been associated to the case and their names and addresses are current. (b) BIA may submit the petition at any time after issuance of the decision. (c) BIA must send a copy of the petition and all supporting Authority: 5 U.S.C. 301, 503; 25 U.S.C. 9, 372–74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457. Title 43—Public Lands: Interior Subpart A—Scope of Part; Definitions PART 30—INDIAN PROBATE HEARINGS PROCEDURES ■ 5. The authority citation for part 30 continues to read as follows: § 30.100 6. In § 30.100, revise paragraphs (a)(5) and (7) through (9) and (c)(2) and (3) to read as follows: ■ How do I use this part? (a) * * * For provisions relating to . . . Consult . . . * * * * * (5) Formal probate proceedings before an administrative law judge or Indian probate judge ...... * §§ 30.210 through 30.253. * * * * * * (7) Purchases at probate ................................................................................................................ (8) Renunciation of interests ........................................................................................................... (9) Summary probate proceedings ................................................................................................. * §§ 30.400 through 30.424. §§ 30.180 through 30.192. §§ 30.200 through 30.209. * * * * * * * * * (c) * * * (2) §§ 30.400 through 30.424 (purchases at probate); (3) §§ 30.183 through 30.188, except for §§ 30.186(a), (b)(2), and (d) and 30.187; * * * * * ■ 7. Amend § 30.101 by: ■ a. Revising the definition of ‘‘Attorney decision maker (ADM)’’; ■ b. Removing the definition of ‘‘BLM’’; ■ c. Adding in alphabetical order a definition for ‘‘Co-owner’’ ■ d. Removing the definition of ‘‘Decision or order (or decision and order)’’; ■ e. Adding in alphabetical order a definition for ‘‘Decision’’; ■ f. Removing the definition of ‘‘De novo review’’; ■ g. Adding in alphabetical order definitions for ‘‘Distribution order’’ and ‘‘Home agency’’; ■ h. Revising the definition of ‘‘Indian probate judge (IPJ)’’; ■ i. Adding in alphabetical order definitions for ‘‘Joint tenancy’’, ‘‘Lineal descendant’’, ‘‘Order’’, and ‘‘Petition to Complete Purchase at Probate’’; ■ j. Revising the definition of ‘‘Summary probate proceeding’’; and ■ k. Adding in alphabetical order a definition for ‘‘Tenants in common’’. The revisions and additions read as follows: khammond on DSKJM1Z7X2PROD with RULES2 documentation to each interested party at the time of filing and include certification of service. § 30.101 know? What definitions do I need to * * * * * Attorney decision maker (ADM) means an attorney with OHA who conducts summary probate proceedings. * * * * * VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 * * Co-owner means any person who owns an undivided trust or restricted interest in the same parcel in which the decedent owns an interest. * * * * * Decision means a written document issued by a judge in a formal probate proceeding or by a judge or ADM in a summary probate proceeding making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty. * * * * * Distribution order means the OHA order distributing additional property that has been added to an estate under § 30.251. * * * * * Home agency means the agency that serves the Tribe in which the decedent is a member or where the decedent’s IIM account originated. * * * * * Indian probate judge (IPJ) means an attorney with OHA, to whom the Secretary has delegated the authority to hear and decide Indian probate cases, pursuant to 25 U.S.C. 372–2. * * * * * Joint tenancy means ownership by two or more persons of the same property, where the individuals, who are called joint tenants, share equal, undivided ownership of the property and have a right of survivorship such that upon the death of a joint tenant, the property descends to the other joint tenants by operation of law. * * * * * PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 * * Lineal descendent means a blood relative of a person in that person’s direct line of descent. * * * * * Order means any written direction or determination, other than a decision, issued by a judge in a probate case, including a distribution order, an order on rehearing, an order on reopening, or a reconsideration order. * * * * * Petition to Complete Purchase at Probate means a petition BIA files with an appraisal or valuation to request that OHA complete the purchase at probate process. ** * * * Summary probate proceeding means the consideration of a probate file without a hearing. A summary probate proceeding may be conducted if the estate involves only an IIM account that did not exceed $300 in value on the date of the death of the decedent. ** * * * Tenants in common means two or more people who share ownership rights in a property, but whose ownership rights are divisible from each other and, when a tenant in common dies, the property descends to that tenant’s heirs or devisees rather than to the other tenant or tenants. * * * * * Subpart B—Commencement of Probate Proceedings ■ 8. Revise § 30.114 to read as follows: E:\FR\FM\20DER2.SGM 20DER2 72084 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations § 30.114 Will I receive notice of the probate proceeding? 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 Subpart C—Judicial Authority and Duties 9. In § 30.123, revise paragraph (a)(1) to read as follows: ■ § 30.123 Will the judge determine matters of status and nationality? (a) * * * (1) If relevant, the status of eligible heirs or devisees as Indians; * * * * * ■ 10. Revise § 30.124 to read as follows: khammond on DSKJM1Z7X2PROD with RULES2 § 30.124 When may a judge presume the death of an heir, devisee, or person for whom a probate case has been opened? (a) When a person cannot be proven dead but evidence of death is needed, a judge may presume that an heir, devisee, or person for whom a probate case has been opened has died at a certain time if any of the following evidence is submitted: (1) A certified copy of an official report or finding by an agency or department of the United States, State, or Tribe that a missing person is dead or presumed to be dead. The judge will use the date of death found by the agency or department, if such a finding was made. If no such finding was made, unless other evidence is submitted showing an actual date of death, the judge will use the date on which the person was reported missing as the date of death. (2) A certified copy of an order from a court of competent jurisdiction that a missing person is dead or presumed to be dead. The judge will use the date of death found by the court, if such a finding was made. If no such finding was made, unless other evidence is submitted showing an actual date of death, the judge will use the date on which the person was reported missing as the date of death. (3) Signed affidavits or sworn testimony by those in a position to know that facts and other records show that the person has been absent from his or her residence for no apparent reason, or has no identifiable place of residence and cannot be located, and has not been heard from for at least 6 years. If there is no evidence available that the person VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 continued to live after the date of disappearance or the date of last contact if the person has no identifiable place of residence, the judge will use the date the person disappeared or the date of last contact as the date of death. (4) When a person has been missing for less than 6 years but may be presumed dead due to an identified incident, such as drowning, fire, or accident, signed affidavits or sworn testimony from individuals who know the circumstances surrounding the occurrence leading to the person’s disappearance. The best evidence is statements from individuals who witnessed the occurrence or saw the missing person at the scene of the occurrence shortly before it happened. If there is no evidence available that the person continued to live after the date of the identified incident, the judge will use the date of the identified incident as the date of death. (5) When a person cannot be located by BIA or known surviving family members and was born at least 100 years before the submission of a probate case to OHA, certification from BIA or signed affidavits or sworn testimony by those in a position to know the approximate date of birth. If there is no evidence available that the person continued to live after reaching the age of 100, the judge will use the date that is 100 years after the date of birth as the date of death. (b) A presumption of death made based on paragraph (a) of this section can be rebutted by evidence that establishes that the person is still alive or explains the individual’s absence in a manner consistent with continued life rather than death. § 30.125 [Redesignated as § 30.129] 11. Redesignate § 30.125 as § 30.129. 12. Add a new § 30.125 to read as follows: ■ (b) If the requirements of paragraph (a) of this section are not met, the judge may find that a devise of a portion of an undivided allotment fails. §§ 30.126 and 30.127 Reserved] [Removed and 13. Remove and reserve §§ 30.126 and 30.127. ■ Subpart G [Removed and Reserved] 14. Remove and reserve subpart G, consisting of §§ 30.160 through 30.175. ■ 15. Revise subpart H to read as follows: ■ Subpart H—Renunciation of Interest Sec. 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? 30.181 When may I renounce a devised or inherited interest? 30.182 Who may renounce an inherited interest on behalf of an heir or devisee who dies before the hearing? 30.183 Who may receive a renounced interest in trust or restricted land if the land will descend pursuant to a valid will? 30.184 Who may receive a renounced interest in trust or restricted land if the land will descend by intestate succession? 30.185 Who may receive a renounced interest in trust personalty? 30.186 How do I renounce an inherited interest? 30.187 What happens if I do not designate any eligible individual or entity to receive the renounced interest? 30.188 What steps will the judge take if I designate a recipient? 30.189 May my designated recipient refuse to accept the interest? 30.190 Are renunciations that predate the American Indian Probate Reform Act of 2004 valid? 30.191 May I revoke my renunciation? 30.192 Does a renounced interest vest in the person who renounced it? ■ Subpart H—Renunciation of Interest § 30.125 May a judge order that a property interest be partitioned as a result of a devise? § 30.180 May I give up an inherited interest in trust or restricted property or trust personalty? (a) A judge may order a property interest to be partitioned if: (1) A will attempts to divide an allotment into two or more distinct portions and devises at least one of those portions; (2) The decedent was the sole owner of the allotment; (3) The allotment is held entirely in trust or restricted status; and (4) The devise describes the portions of the allotment in a manner that allows the judge to readily ascertain which portion of the allotment descends to each intended devisee. You may renounce an inherited or devised interest in trust or restricted property, including a life estate, or in trust personalty if: (a) You are 18 years or older and not under a legal disability; or (b) You are an entity. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 § 30.181 When may I renounce a devised or inherited interest? (a) If the judge has not yet issued a decision, you may renounce a devised or inherited interest at any time before the issuance of the decision. (b) If the judge has issued a decision, you may renounce a devised or E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations inherited interest in any property distributed by the decision: (1) Within 30 days from the mailing date of the decision; or (2) Within 30 days of the order on review, in a summary probate proceeding in which a request for review has been filed; or (3) Before the entry of an order on rehearing, in a formal probate proceeding in which a petition for rehearing is pending. (c) You may renounce a devised or inherited interest that is added to the decedent’s estate after the decision is issued pursuant to § 30.251 within 30 days of mailing the distribution order. (d) Once the order on rehearing is issued, you may not renounce a devised or inherited interest that was distributed by the decision. § 30.185 Who may receive a renounced interest in trust personalty? You may renounce an interest in trust personalty in favor of any person or entity. § 30.186 How do I renounce an inherited interest? If an individual heir or devisee dies before the hearing, a renunciation may be made on his or her behalf by any of the following, if the judge makes a determination that the renunciation is in the best interest of the parties: (a) An individual appointed by a probate court to act on behalf of his or her private (i.e., non-Federal-trust) estate, including but not limited to a personal representative, administrator, or executor; or (b) Someone appointed by the judge with the express approval of all the heirs or devisees of the deceased heir or devisee. To renounce an interest under § 30.180, you must file with the judge a written declaration or Tribal resolution specifying the interest to be renounced. The declaration must be signed by you and acknowledged before a notary or judge. The Tribal resolution must be approved by appropriate Tribal authorities. (a) In your declaration, you may retain a life estate in a specified interest in trust or restricted land and renounce the remainder interest, or you may renounce the complete interest. (b) If you renounce an interest in trust or restricted land, you may either: (1) Designate an eligible person or entity meeting the requirements of § 30.182 or § 30.183 as the recipient; or (2) Renounce without making a designation. (c) If a distribution order to add property to the decedent’s estate is issued, you may renounce an inherited interest in the property to be added by notifying the judge in writing of your intent to renounce the interest within 30 days of the mailing date of the distribution order. § 30.183 Who may receive a renounced interest in trust or restricted land if the land will descend pursuant to a valid will? § 30.187 What happens if I do not designate any eligible individual or entity to receive the renounced interest? A devisee may renounce an interest in trust or restricted land in favor of any one or more of the following: (a) A lineal descendant of the testator; (b) A co-owner; (c) The Tribe with jurisdiction over the interest; or (d) Any Indian. If you do not designate any individual or entity to receive the renounced interest, or if you designate an individual or entity who is not eligible to receive the renounced interest, the interest will descend to the decedent’s heirs or devisees as if you predeceased the decedent. § 30.184 Who may receive a renounced interest in trust or restricted land if the land will descend by intestate succession? § 30.188 What steps will the judge take if I designate a recipient? § 30.182 Who may renounce an inherited interest on behalf of an heir or devisee who dies before the hearing? khammond on DSKJM1Z7X2PROD with RULES2 one person or entity listed in paragraph (a) of this section, or to one Indian person related to you by blood. (a) If the interest in trust or restricted land represents 5 percent or more of the entire undivided ownership of the parcel, you may renounce that interest in favor of one or more of the following: (1) Eligible heirs of the decedent; or (2) The Tribe with jurisdiction over the interest. (b) If the interest in the trust or restricted land represents less than 5 percent of the entire undivided ownership of the parcel, you may renounce that interest in favor of only VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 If you choose to renounce your interests in favor of a designated recipient, the judge will determine whether the designated recipient is eligible to receive the interest. If the designated recipient is eligible, the judge must notify the designated recipient of the renunciation. § 30.189 May my designated recipient refuse to accept the interest? Yes. Your designated recipient may refuse to accept the interest, in which case the renounced interest will PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 72085 descend to the devisees or heirs of the decedent as if you had predeceased the decedent. When the judge notifies the designated recipient of the renunciation, the judge will specify a deadline for the recipient to file a written refusal to accept the interest. If no written refusal is received before the deadline, the interest will descend to the designated recipient. § 30.190 Are renunciations that predate the American Indian Probate Reform Act of 2004 valid? Any renunciation filed and included as part of a probate decision or order issued before October 27, 2004, the effective date of the American Indian Probate Reform Act of 2004, remains valid. § 30.191 May I revoke my renunciation? A written renunciation is irrevocable when the applicable order distributing the renounced property becomes final. § 30.192 Does a renounced interest vest in the person who renounced it? No. An interest in trust or restricted property renounced under this subpart is not considered to have vested in the renouncing heir or devisee, and the renunciation is not considered a transfer by gift of the property renounced. ■ 16. Revise subpart I to read as follows: Subpart I—Summary Probate Proceedings Sec. 30.200 What is a summary probate proceeding? 30.201 May I file a claim in a summary probate proceeding? 30.202 What will happen when OHA receives the summary probate file? 30.203 What will happen if the funds in the estate are insufficient to provide each heir or devisee at least one cent? 30.204 May I request that a formal probate proceeding be conducted instead of a summary probate proceeding? 30.205 What must a summary probate decision contain? 30.206 What notice of the summary probate decision will the judge or ADM provide? 30.207 How do I seek review of a summary probate proceeding? 30.208 What happens after I file a request for review? 30.209 What will the judge or ADM do with the official record of the summary probate case? Subpart I—Summary Probate Proceedings § 30.200 What is a summary probate proceeding? (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 E:\FR\FM\20DER2.SGM 20DER2 72086 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations 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. § 30.201 May I file a claim in a summary probate proceeding? No. Claims may not be filed in summary probate proceedings. § 30.202 What will happen when OHA receives the summary probate file? When OHA receives a summary probate file from BIA under 25 CFR 15.202(b), OHA will determine the distribution of the estate based on the information included in the probate file and issue a summary probate decision directing distribution of the estate. § 30.203 What will happen if the funds in the estate are insufficient to provide each heir or devisee at least one cent? If the funds in the estate are insufficient to provide each of the heirs or devisees at least one cent, all of the funds will be paid to the oldest heir or devisee, whichever is applicable. § 30.204 May I request that a formal probate proceeding be conducted instead of a summary probate proceeding? No. Formal probate proceedings are available only for estates that contain trust or restricted land or contain trust personalty in an amount greater than $300. khammond on DSKJM1Z7X2PROD with RULES2 § 30.205 What must a summary probate decision contain? The written decision in a summary probate proceeding must be in the form of findings of fact and conclusions of law, with an order for distribution. Each decision must include the following: (a) The name, birth date, and relationship to the decedent of each heir or devisee; (b) A statement as to whether the heir or devisee is eligible to hold property in trust status and, if relevant, a statement of whether the heir or devisee is ‘‘Indian’’ for purposes of the Act; (c) If the case involves a will, a statement approving or disapproving the will, interpreting provisions of an approved will as necessary, and describing the share each devisee is to receive under an approved will; (d) In intestate cases, citation to the law of descent and distribution under VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 which the summary probate decision is made, and description of the share each heir is to receive; (e) A statement advising all interested parties, other than potential claimants, that they have a right to seek review under § 30.207 and that, if they fail to do so, the summary probate decision will become final 30 days after it is mailed; (f) Notice to the heirs or devisees that each may renounce his or her right to inherit the funds in favor of one or more individuals or entities. The heir or devisee will be ordered to submit the renunciation within 30 days of the mailing date of the decision or within 30 days of an order on review if a request for review is filed by any party; (g) A statement that the findings in a summary probate decision may not be used to determine the decedent’s heirs or devisees for distribution of any trust or restricted land that may be added to the decedent’s estate at a later time. If BIA identifies trust or restricted land in the decedent’s estate after the completion of the summary probate process, BIA should file a petition for reopening and include all documents required for a formal probate proceeding pursuant to 25 CFR 15.202(a); and (h) The signature of the judge or ADM and date of the probate decision. (1) The name of the decedent; (2) A description of your relationship to the decedent; (3) An explanation of what errors you allege were made in the summary probate decision; and (4) An explanation of how you are adversely affected by the decision. § 30.208 What happens after I file a request for review? (a) Within 30 days of receiving a request for review, OHA will notify the agency that prepared the probate file, all other affected agencies, and all interested parties of the request. (b) A judge will review the merits of the case, consider any allegations of errors in the summary probate decision, conduct a hearing if necessary or appropriate to address the issues raised in the request, and issue an order affirming, modifying, or vacating the summary probate decision. (c) The judge must distribute the final order on the request to review to each affected agency and to each interested party. The order must include a notice stating that interested parties who are adversely affected, or BIA, have a right to appeal the final order to the Board within 30 days of the date on which the final order was mailed, and giving the Board’s address. § 30.206 What notice of the summary probate decision will the judge or ADM provide? § 30.209 What will the judge or ADM do with the official record of the summary probate case? When the judge or ADM issues a decision in a summary probate proceeding, the judge or ADM 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. (a) The notice must include a statement that interested parties who are adversely affected have a right to file a request for review with the judge or ADM within 30 days of the mailing date of the decision. (b) The decision will become final at the end of the 30-day period, unless a timely request is filed. The judge or ADM will transfer the official record of the summary probate case to the agency originating the probate, by sending all original hard copies, and transmitting all digital files, that are designated by OHA as part of the official record, including: (a) The decision, order, and the notices thereof; (b) A copy of the notice of hearing on review with proof of mailing, if applicable; (c) The record of the evidence received at the hearing on review, if a hearing was held, including any transcript made of the testimony; (d) Any wills, codicils and revocations; (e) Any pleadings and briefs filed; (f) Interlocutory orders; (g) Copies of all proposed or accepted settlement agreements, consolidation agreements, and renunciations and acceptances of renunciations; and (h) Any other documents deemed material by the judge. § 30.207 How do I seek review of a summary probate proceeding? (a) If you are adversely affected by the written decision in a summary probate proceeding, you may seek review of the summary probate decision. To do this, you must file a request with the OHA office that issued the summary probate decision within 30 days after the date the summary probate decision was mailed. BIA may also seek review within the same deadline. (b) The request for review must be in writing and signed, and must contain the following information: PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 Subpart J—Formal Probate Proceedings 17. Revise §§ 30.210 and 30.211 to read as follows: ■ E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations § 30.210 How will I receive personal notice of the formal probate proceeding? (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. khammond on DSKJM1Z7X2PROD with RULES2 § 30.211 How will OHA provide public notice of the formal probate proceeding? (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/Ph.D. (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 (e) 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 (d)(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 VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 office was not possible due to the agency office being closed or inaccessible. ■ 18. In § 30.214, revise the introductory text and paragraph (g) to read as follows: § 30.214 What must a notice of hearing contain? The notice of hearing under § 30.114 must: * * * * * (g) In estates for decedents whose date of death is on or after June 20, 2006, include notice of the possibilities of purchase and sale of trust or restricted property in accordance with Federal law or Secretarially approved Tribal probate codes by heirs, devisees, co-owners, a Tribe or the Secretary; and * * * * * ■ 19. In § 30.235, revise paragraph (a)(2) to read as follows: § 30.235 What will the judge’s decision in a formal probate proceeding contain? * * * * * (a) * * * (2) If relevant, state whether the heir or devisee is Indian or non-Indian; * * * * * ■ 20. Revise §§ 30.238 through 30.246 to read as follows: * * * * * Sec. 30.238 May I file a petition for rehearing if I disagree with the judge’s decision in the formal probate hearing? 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? 30.240 How will the judge decide a petition for rehearing? 30.241 May I submit another petition for rehearing? 30.242 When does the judge’s order on a petition for rehearing become final? 30.243 May a closed probate case be reopened? 30.244 When must a petition for reopening be filed? 30.245 What legal standard will be applied to reopen a case? 30.246 What must be included in a petition for reopening? * * * * * 72087 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. § 30.239 Does any distribution of the estate occur while a petition for rehearing is pending? 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. § 30.238 May I file a petition for rehearing if I disagree with the judge’s decision in the formal probate hearing? § 30.240 How will the judge decide a petition for rehearing? (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 (a) The judge may consider a petition as a petition for reopening if the petition for rehearing is not timely filed. (b) The judge may summarily deny the petition based on the deficiencies of the petition. A summary denial is an order in which the judge denies the petition without deciding the merits of the issues raised in the petition and is warranted if: PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER2.SGM 20DER2 72088 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations (1) The petition alleges mere disagreement with a decision; (2) The petition is based on newly discovered evidence and fails to meet the requirements of § 30.238(e); or (3) The petition is based solely on issues or evidence described in § 30.238(d)(1) or (2). (c) If the petition fails to show proper grounds for rehearing, the judge will issue an order denying the petition for rehearing and including the reasons for denials. (d) If the petition shows proper grounds for rehearing, the judge must: (1) Cause copies of the petition and all papers filed by the petitioner to be served on those persons whose interest in the estate may be affected if the petition is granted; (2) Allow all persons served a reasonable, specified time in which to respond to the petition for rehearing; and (3) Consider with or without a hearing, the issues raised in the petition. (e) The judge may affirm, modify, or vacate the former decision. (f) On entry of a final order, including a summary denial, the judge must distribute the order to the petitioner, the agencies, and the interested parties. The order must include a notice stating that interested parties who are adversely affected, or BIA, have the right to appeal the final order to the Board, within 30 days of the date on which the order was mailed, and giving the Board’s address. § 30.241 May I submit another petition for rehearing? No. Successive petitions for rehearing may not be filed by the same party or BIA in the same probate case. § 30.242 When does the judge’s order on a petition for rehearing become final? The order on a petition for rehearing will become final on the expiration of the 30 days allowed for the filing of a notice of appeal, as provided in this part and § 4.320 of this chapter. The jurisdiction of the judge terminates when he or she issues an order finally disposing of a petition for rehearing, except for the reopening of a case under this part. khammond on DSKJM1Z7X2PROD with RULES2 § 30.243 May a closed probate case be reopened? 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. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 (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. § 30.244 When must a petition for reopening be filed? (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. § 30.245 What legal standard will be applied to reopen a case? (a) If a petition for reopening is filed within 3 years or less of the date of the decision or order, the judge may reopen the case to correct an error of fact or law in the decision or order. (b) When a petition for reopening is filed more than 3 years after the date of the decision or order, the judge may reopen the case if the judge finds that the need to correct the error outweighs the interests of the public and heirs or devisees in the finality of the probate proceeding. § 30.246 What must be included in a petition for reopening? (a) A petition for reopening must: (1) State specifically and concisely the grounds on which the petition is based; and (2) Include all relevant evidence in the form of documents and/or sworn affidavits supporting any allegations and relief requested in the petition. (b) A petition filed by an interested party or by BIA on behalf of an interested party must also: (1) State the date the interested party discovered the alleged error; (2) Include all relevant evidence in the form of documents and/or sworn affidavits, concerning when and how the interested party discovered the alleged error; (c) A petition filed more than 3 years after the date of the decision or order must show that the need to correct the error outweighs the interests of the public and heirs or devisees in the finality of the probate proceeding, which may be shown by addressing the following factors in the petition, as applicable: PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 (1) The nature of the error; (2) The passage of time; (3) Whether the interested party exercised due diligence in pursuing his or her rights; (4) Whether the interested party’s ancestor exercised due diligence in pursuing his or her rights and whether a failure to exercise should be imputed to the interested party; (5) The availability of witnesses and documents; (6) The general interest in administrative finality; (7) The number of other estates that would be affected by the reopening, if known; and (8) Whether the property that was in the estate is still available for redistribution if the case is reopened, if known. ■ 21. Add §§ 30.247 through 30.249 to read as follows: * * * * * Sec. 30.247 What is not appropriate for a petition for reopening? 30.248 How will the judge decide my petition for reopening? 30.249 What happens when the judge issues an order on reopening? * * * * * § 30.247 What is not appropriate for a petition for reopening? A petition for reopening may not: (a) Raise issues or objections that were already addressed in a prior rehearing or reopening order; (b) Raise issues or objections when the interested party had the opportunity to raise them earlier because they received proper notice of the hearing or summary decision; or (c) Submit evidence that was available or discoverable at the time the decision was issued, or available during the rehearing period. The requirements at § 30.238(e) concerning presentation of new evidence on rehearing also apply to the presentation of new evidence on reopening. § 30.248 How will the judge decide my petition for reopening? (a) The judge may summarily deny the petition for reopening based on deficiencies in the petition. A summary denial is an order in which the judge denies the petition without deciding the merits of the allegations in the petition and is warranted if: (1) The petition alleges mere disagreement with a decision; (2) The petition raises issues or objections that were previously addressed in a rehearing order or reopening order; (3) The petition raises only issues or objections by or on behalf of an E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations interested party for the first time on reopening and that interested party received proper notice of the hearing or summary decision; (4) The petition is based on newly discovered evidence and fails to meet the requirements of § 30.238(e); or (5) The petition is based solely on issues or evidence described in § 30.245(c). (b) If a summary denial is not warranted, the judge will review the merits of the petition to determine if the petition asserts proper grounds for reopening. (1) If the petition fails to assert proper grounds for reopening, then the judge will issue an order denying the petition for reopening and addressing the merits of the petition. (2) If the petition asserts proper grounds for reopening, the judge will: (i) Cause copies of the petition and all papers filed by the petitioner to be served on those persons whose interest in the estate may be affected if the petition is granted; (ii) Allow all persons served a reasonable, specified time in which to respond to the petition for reopening by filling responses, cross-petitions, or briefs; (iii) Suspend further distribution of the estate or income during the reopening proceedings, if appropriate, by order to the affected agencies; (iv) Consider, with or without a hearing, the issues raised in the petition; and (v) Affirm, modify, or vacate the decision or order. (c) On entry of a final order, including a summary denial, the judge must distribute the order to the petitioner, the agencies, and the interested parties. The order must include a notice stating that interested parties who are adversely affected, or BIA, have the right to appeal the final order to the Board, within 30 days of the mailing date, and giving the Board’s address. khammond on DSKJM1Z7X2PROD with RULES2 § 30.249 What happens when the judge issues an order on reopening? (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. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 Subpart K—[Redesignated as Subpart N] 22. Redesignate subpart K, consisting of §§ 30.250 through 30.254, as subpart N and revise the heading to read as follows: ■ Subpart N—Miscellaneous §§ 30.250 and 30.251 through 30.254 [Redesignated as §§ 30.500 and 30.503 through 30.506] 23. In newly redesignated subpart N, redesignate §§ 30.250 and 30.251 through 30.254 as §§ 30.500 and 30.503 through 30.506, respectively. ■ Subpart J—Formal Probate Proceedings 24. Add new §§ 30.250 through 30.253 to read as follows: * * * * * ■ Sec. 30.250 May a correction order be issued to correct typographical and other nonsubstantive errors? 30.251 What happens if BIA identifies additional property of a decedent after the probate decision is issued? 30.252 What happens if BIA identifies that property was incorrectly included in a decedent’s inventory? 30.253 What happens if a request for reconsideration of a distribution order is timely made? * * * * * § 30.250 May a correction order be issued to correct typographical and other nonsubstantive errors? If, after issuance of a decision or other probate order, it appears that the decision or other probate order contains non-substantive errors, the judge may issue a correction order to correct them. Errors are non-substantive if they are merely typographical, clerical, or their correction would not change the distribution of a decedent’s property. (a) A judge may issue a correction order for the purpose of correcting nonsubstantive errors on the judge’s own motion. A request for correction order may also be filed by BIA or an interested party at any time. (b) Copies of the correction order will be sent to BIA and all interested parties. (c) The correction order is not subject to appeal to the Board. § 30.251 What happens if BIA identifies additional property of a decedent after the probate decision is issued? If, after issuance of a decision, BIA identifies additional trust or restricted property of a decedent that it had not already identified at the time of the decision, then BIA will submit a petition to OHA for an order directing distribution of the additional property. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 72089 (a) OHA will accept the petition at any time after issuance of the decision. (b) The judge will review the petition to ensure that the petition identifies the additional property and the source of that property (e.g., inheritance or approval of a deed) and includes the following: (1) A certified inventory describing the additional trust or restricted land, if applicable, or, if the additional property is trust personalty, documents verifying the balance and source of the additional trust personalty, and a statement that the inventory lists only the property to be added; (2) A copy of the decision, or modification or distribution order and corresponding inventory issued in the probate case from which the property was inherited by the decedent, if applicable; (3) A statement identifying each newly added share of any allotment that increases the decedent’s total share of the ownership interest of the allotment to 5 percent or more; (4) A copy of BIA’s notification to the Tribes with jurisdiction over the interests of the list of the additional interests that represent less than 5 percent of the entire undivided ownership of each parcel (after being added to the decedent’s estate) under 25 CFR 15.401(b); and (5) A certification that all interested parties have been associated to the case and their names and addresses are current. (c) The judge may, at the judge’s discretion, either: (1) Deny the request for good cause; or (2) Address the request with or without a hearing. (d) If the judge does not deny the petition, the judge will issue an order that directs distribution of the additional property. The order may direct that the additional property be distributed in the same manner as property already addressed in the decision, or the order may direct that the additional property be distributed in a different manner than property already addressed in the decision. (e) The judge must furnish copies of the distribution order to the agency and to all interested parties who share in the estate. The distribution order will notify all heirs or devisees, including any surviving spouse, of the right to seek reconsideration to: (1) Object to the findings and conclusions of the distribution order; (2) Renounce their interest(s) in any of the additional property; E:\FR\FM\20DER2.SGM 20DER2 72090 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations (3) Include the additional property in an existing or new consolidation agreement; (4) Allege an error in BIA’s inventory of additional property under § 30.128; or (5) File a request to purchase the additional property at probate. (f) The distribution order will also instruct the heirs or devisees that they must notify OHA in writing of their request for reconsideration of the distribution order within 30 days of the mailing of the distribution order, and that their right to seek reconsideration will be waived if they fail to notify OHA in writing by the deadline. For purposes of filing the request for reconsideration, the written submission will be considered to be filed with OHA on the date it is postmarked or faxed to OHA. (g) If OHA does not receive a timely request for reconsideration, the distribution order will become final on the 45th day after the mailing date. An untimely filed request for reconsideration will not be considered by OHA and will not disturb the finality of the distribution order. khammond on DSKJM1Z7X2PROD with RULES2 § 30.252 What happens if BIA identifies that property was incorrectly included in a decedent’s inventory? If, after issuance of a decision, BIA identifies certain trust or restricted property or an interest therein that was incorrectly included in a decedent’s inventory, then BIA will submit a petition to OHA for an order notifying all heirs or devisees of the correction and addressing any changes in distribution of property resulting from the correction. (a) OHA will accept the petition at any time after issuance of the decision. (b) The judge will review the petition to ensure that it identifies the property that BIA removed from the estate, explains why the property should not have been included, and includes the following: (1) A newly issued certified inventory describing the trust or restricted land remaining in decedent’s estate, if applicable; (2) A copy of the decision, or modification or distribution order and corresponding inventory issued in the probate case from which BIA discovered that the property was incorrectly included in the decedent’s estate, if applicable; (3) A statement identifying each property in the decedent’s estate that decreased to a total share of the ownership of the allotment to less than 5 percent as a result of the removal of property from the estate; and (4) A certification that all interested parties have been associated to the case VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 and their names and addresses are current. (c) The judge may, at the judge’s discretion, either: (1) Deny the request for good cause; or (2) Address the request with or without a hearing. (d) If the judge does not deny the petition, the judge will issue an order that addresses any modifications to the distribution of the decedent’s property resulting from the correction of the inventory. The order may find that the correction of the inventory does not modify the distribution of any remaining property in the estate. (e) The judge must furnish copies of the distribution order to the agency and to all interested parties who share in the estate. The distribution order will inform all heirs or devisees, including any surviving spouse, of the right to seek reconsideration to: (1) Object to the findings and conclusions of the distribution order; or (2) Allege an error in BIA’s inventory under § 30.128. (f) The distribution order will also instruct the heirs or devisees that they must notify OHA in writing of their objection to the distribution order within 30 days of the mailing of the distribution order, and that their right to seek reconsideration will be waived if they fail to notify OHA in writing by the deadline. For purposes of filing the request for reconsideration, the written submission will be considered to be filed with OHA on the date it is postmarked or faxed to OHA. (g) If OHA does not receive a timely request for reconsideration, the distribution order will become final on the 45th day after the mailing date. An untimely filed request for reconsideration will not be considered by OHA and will not disturb the finality of the distribution order. § 30.253 What happens if a request for reconsideration of a distribution order is timely made? (a) If an heir, devisee, BIA or Tribe files a timely request for reconsideration, OHA will: (1) Send to BIA a notice of receipt of a petition for reconsideration as soon as practicable, ordering that the newly added property not be distributed or incorrectly included property not be removed, as applicable, during the pendency of the petition for reconsideration; and (2) Forward a copy of the petition and any documents filed with the petition to the interested parties and affected agencies. (b) The agencies must not distribute any portion of the estate while the PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 petition is pending, unless otherwise directed by the judge. (c) If proper grounds for reconsideration are not shown, the judge will issue an order denying the petition for reconsideration and including the reasons for the denial. (d) If proper grounds for reconsideration are shown, the judge must: (1) Allow all persons served a reasonable, specified time in which to submit answers or legal briefs in response to the petition; and (2) Consider, with or without a hearing, the issues raised in the petition, including requests to renounce, requests to purchase newly added properties at probate, and requests to include newly added property in an existing or new consolidation agreement. (e) The judge will not reconsider findings made in the decision; the judge will only reconsider findings made in the distribution order regarding the distribution of the additional property or modification to distribution resulting from the inventory correction, as applicable. (f) If an interested party raises an inventory dispute in the petition for reconsideration, the judge may order that the distribution order is vacated and remand the BIA’s petition to the BIA under § 30.128 to resolve the inventory dispute. (g) The judge will issue a final order on reconsideration which may affirm, modify, or vacate the distribution order. (h) On entry of a final order on reconsideration, the judge must distribute the order to the petitioner, the agencies, and the interested parties. The order must include notice stating that interested parties who are adversely affected, or BIA, have the right to appeal the final order to the Board, within 30 days of the date on which the order was mailed, and giving the Board’s address. (i) Neither BIA nor any interested party may file successive petitions for reconsideration. (j) The order on a petition for reconsideration will become final on the expiration of the 30 days allowed for the filing of a notice of appeal, as provided in this part and § 4.320 of this chapter. Subpart K—[Reserved] ■ ■ 25. Add reserved subpart K. 26. Add subpart M to read as follows: Subpart M—Purchase at Probate Sec. 30.400 What may be purchased at probate? 30.401 Who may purchase at probate? 30.402 Does property purchased at probate remain in trust or restricted status? 30.403 Is consent required for a purchase at probate? E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations 30.404 How do I initiate a purchase at probate? 30.405 When may I initiate a purchase at probate? 30.406 May I withdraw my request to purchase at probate? 30.407 How will OHA address requests to purchase at probate? 30.408 What will OHA include in the probate decision or reconsideration order when a purchase at probate request is pending? 30.409 How will a pending purchase at probate request affect how the decedent’s property is distributed? 30.410 How will the purchase at probate process continue after the decision or reconsideration order is issued? 30.411 How will the interests to be purchased at probate be valued? 30.412 What will OHA do when it receives BIA’s notification that an appraisal/ valuation has been completed? 30.413 Who are potential bidders? 30.414 What will be contained in the Order to Submit Bids? 30.415 What may I do if I do not agree with the determination of fair market value in the Order to Submit Bids? 30.416 How does OHA decide whether a bid is successful? 30.417 How does the judge notify the parties whether there was a successful bid? 30.418 When must the successful bidder pay for the interest purchased? 30.419 What happens after the successful bidder submits payment? 30.420 What happens if the successful bidder does not submit payment within 30 days? 30.421 When does a purchased interest vest in the purchaser? 30.422 What will happen to any lease income received or accrued from purchased land interests before the purchased interest vests in the purchaser? 30.423 What may I do if I disagree with the judge’s determination to approve or deny a purchase at probate? 30.424 When will the order approving or denying the purchase at probate become final? Subpart M—Purchase at Probate khammond on DSKJM1Z7X2PROD with RULES2 § 30.400 What may be purchased at probate? (a) The judge may allow an eligible purchaser to purchase at probate all or part of the trust or restricted land in the estate of a person who died on or after June 20, 2006. Any interest in trust or restricted land, including a life estate that is part of the estate (i.e., a life estate owned by the decedent but measured by the life of someone who survives the decedent), may be purchased at probate, except as provided in paragraph (b) of this section. (b) Purchase of minerals-only real property interests (i.e., an allotment that does not include a surface interest) may be considered for purchase at probate VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 only if sufficient evidence of the fair market value of the real property interest is submitted. No interest in a minerals-only property may be purchased at probate on the basis of the value of the minerals themselves. § 30.401 Who may purchase at probate? An eligible purchaser at probate is any of the following: (a) Any devisee or eligible heir who is receiving an interest in the same parcel of land by devise or descent in the probate proceeding; (b) Any co-owner; (c) The Indian Tribe with jurisdiction over the parcel containing the interest; or (d) The Secretary on behalf of the Tribe. § 30.402 Does property purchased at probate remain in trust or restricted status? Yes. The property interests purchased at probate must remain in trust or restricted status. § 30.403 Is consent required for a purchase at probate? (a) Except as provided in paragraphs (b) and (c) of this section, to purchase at probate a decedent’s interest in trust or restricted property, the eligible purchaser must have the consent of: (1) The heir or devisee of the share to be purchased; (2) Any surviving spouse whose share is to be purchased and who receives a life estate under 25 U.S.C. 2206(a)(2)(A) or (D); or (3) Any recipient of an interest received under an approved consolidation agreement whose share is to be purchased. (b) If consent is required from an heir or devisee for a purchase at probate, the consent may be given either: (1) During a hearing as part of the record; or (2) In writing to OHA. (c) An heir or devisee’s failure to attend a hearing or respond to an order will not be presumed to constitute consent. (d) An heir or devisee may withdraw consent at any time before the purchase is final. (1) To notify OHA, the heir or devisee must state, either on record at the probate hearing, or in writing to OHA, that the heir or devisee is not willing to consent to sell the property under any circumstances and/or is not willing to consider any bids to purchase the property interest. (2) When OHA receives such notice, it will deny the request to purchase the property interest to which the notice applies. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 72091 (e) If you are the Tribe with jurisdiction over the parcel containing the interest, you do not need the consent of those listed under paragraph (a) of this section if the following five conditions are met: (1) The interest will descend by intestate succession; (2) The judge determines based on the Department’s records that the decedent’s interest at the time of death was less than 5 percent of the entire undivided ownership of the parcel of land; (3) The heir or surviving spouse was not residing on the property at the time of the decedent’s death; (4) The heir or surviving spouse is not a member of your Tribe or eligible to become a member; and (5) The interest is not included in an approved consolidation agreement. (f) BIA may purchase an interest in trust or restricted land on behalf of the Tribe with jurisdiction over the parcel containing the interest if BIA obtains consent under paragraph (a) of this section or the conditions in paragraph (c) of this section are met. § 30.404 How do I initiate a purchase at probate? Any eligible purchaser may initiate a purchase at probate by submitting a written request to OHA to purchase at probate. § 30.405 When may I initiate a purchase at probate? (a) To initiate a purchase at probate during the initial probate proceeding, the eligible purchaser must submit the written request before the completion of the first probate hearing. (b) If a property interest the eligible purchaser would like to purchase has been added to the decedent’s estate under § 30.251, the purchaser must submit the written request within 30 days of the mailing of the distribution order issued under § 30.251(d). § 30.406 May I withdraw my request to purchase at probate? At any point before the purchase is complete, a purchaser may withdraw a request to purchase at probate. In order to withdraw a request to purchase, the requester must file with OHA a written statement that the request is withdrawn. The requester is not required to provide reasons or justification for withdrawal of the request. § 30.407 How will OHA address requests to purchase at probate? The judge has discretion to deny a request to purchase at probate in the decision or at any time thereafter. If one or more requests to purchase at probate E:\FR\FM\20DER2.SGM 20DER2 72092 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations are timely filed, OHA will address those requests in the probate decision (or reconsideration order if the request to purchase is for property that has been added to the decedent’s estate under § 30.251) and either deny the requests at that time or provide instructions for continuing the purchase at probate process. § 30.408 What will OHA include in the probate decision or reconsideration order when a purchase at probate request is pending? (a) If a purchase at probate request is pending at the time the probate decision (or reconsideration order under § 30.251) is issued, and is not denied in the decision (or reconsideration order), the decision (or reconsideration order) will include the following to address the request: (1) A list of all requests to purchase at probate that have been submitted; (2) Notification to the parties as to whether consent of the applicable heirs or devisees is required to approve the requested purchase; and (3) Direction to BIA to obtain an appraisal or valuation for each interest for which a purchase at probate request has been submitted. (b) If the purchase of the interest requires consent of the applicable heirs or devisees, the probate decision or reconsideration order will also: (1) Direct the heirs or devisees to submit written notification within 30 days of the mailing date of the decision or reconsideration order that the heirs or devisees would consider selling the interest to an eligible purchaser during the probate process if a bid is made for fair market value or greater; (2) Inform the heirs or devisees that OHA may consider failure to provide such written notification as a refusal to consent to sell the property during probate, and may rely on such refusal to deny the request to purchase at probate; and (3) Direct BIA to postpone seeking an appraisal/valuation of that property until BIA receives future notice from OHA that at least one heir or devisee has filed the written notification that the heir or devisee would consider selling the interest. khammond on DSKJM1Z7X2PROD with RULES2 § 30.409 How will a pending purchase at probate request affect how the decedent’s property is distributed? When the decision (or distribution order following a reconsideration order under § 30.251) becomes final, BIA may distribute the estate as stated in the decision or distribution order. The decision or distribution order will identify any property interest that is the subject of a pending request for VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 purchase at probate, and that the property interest will be conveyed with an encumbrance, which will remain on the property interest until the request is fully addressed. The encumbrance does not affect distribution of trust personalty. § 30.410 How will the purchase at probate process continue after the decision or reconsideration order is issued? After a decision or reconsideration order is issued: (a) If consent is required for the purchase of an interest, and an heir or devisee does not submit written notification that he or she would consider selling the interest by the deadline OHA established, the request to purchase the applicable property interest(s) is denied by operation of law. In such cases, OHA will notify the BIA that it may remove the encumbrance remaining on the applicable property interest(s). (b) If the heirs or devisees submit the written notification that they would consider selling the interest by the deadline OHA established, then OHA will notify BIA that it may obtain an appraisal/valuation of the property. (c) In any other instances in which a purchase request is denied, BIA may remove any encumbrance remaining on the applicable property interest(s). § 30.411 How will the interests to be purchased at probate be valued? (a) For each parcel for which a request to purchase has been submitted, BIA will obtain appraisal(s) or other fair market valuation(s) in compliance with the Uniform Standards of Professional Appraisal Practice (USPAP) or other approved valuation methods under 25 U.S.C. 2214. (b) Any appraisal/valuation must be made on the basis of the fair market value of the parcel as of the date of the decedent’s death. (c) No valuation document filed by the BIA, aside from an appraisal, will be used to determine the fair market value of trust land during a purchase at probate unless the document clearly states that it assesses the fair market value of the real property interest or is accompanied by a certification that it does so. § 30.412 What will OHA do when it receives BIA’s notification that an appraisal/ valuation has been completed? When OHA receives BIA’s notification that an appraisal/valuation has been completed and BIA files a Petition to Complete Purchase at Probate, OHA will issue an Order to Submit Bids to all potential bidders to PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 submit bids for property interests with pending purchase at probate requests. (a) Potential bidders may submit bids even if they have not previously submitted a request to purchase at probate. (b) OHA will identify the individuals/ entities who are eligible to submit bids for each property interest available for purchase at probate. § 30.413 Who are potential bidders? (a) The Tribe will be the only potential bidder and no other bids will be accepted if: (1) The Tribe with jurisdiction over the property submits the only request to purchase within the deadline; and (2) The requirements of § 30.403(c) (i.e., consent of the heir is not required) are met. (b) In other situations, potential bidders may include: (1) Any eligible purchaser who has satisfied the requirements of §§ 30.404 and 30.405; (2) Eligible heirs; (3) Eligible devisees; (4) The Indian Tribe with jurisdiction over the property interest; and (5) Co-owners who have previously notified BIA in writing that they wish to receive probate notices concerning that allotment. § 30.414 What will be contained in the Order to Submit Bids? For each property for which a request to purchase at probate is pending, the Order to Submit Bids will include: (a) A finding of the fair market value of the interest to be sold, determined in accord with the appraisal/valuation provided by the BIA under § 30.411; (b) Information concerning where a copy of the appraisal/valuation may be viewed; (c) Direction to potential bidders to submit bids to purchase the property that are equal to or greater than the fair market value; (d) A deadline by which OHA must receive bids from all potential bidders; and (e) A statement that if no bids are submitted by the deadline, the request to purchase will be denied. § 30.415 What may I do if I do not agree with the determination of fair market value in the Order to Submit Bids? (a) You may object to the determination of fair market value stated in the Order to Submit Bids if: (1) You are the heir, devisee, or surviving spouse whose interest is to be sold; (2) You filed a written request to purchase; or E:\FR\FM\20DER2.SGM 20DER2 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations (3) Any potential bidder or other party who may be affected by the determination of the fair market value. (b) To object to the determination of fair market value: (1) You must file a written objection with OHA no later than 45 days after the mailing date of the Order to Submit Bids. (2) The objection must: (i) State the reasons for the objection; and (ii) Include any supporting documentation showing why the fair market value should be modified. (3) You must provide copies of the written objection and any supporting documentation to all parties who have an interest in the purchase of the property. (c) Any party who may be affected by the determination of the fair market value may file a response to the written objection with OHA no later than 45 days after the date the written objection was served on the interested parties. Any document supporting the party’s response must be submitted with the response. (d) The judge will consider any timely submitted written objection and responses, and will determine whether to modify the finding of fair market value, with or without a valuation hearing. OHA will issue a Modified Order to Submit Bids that addresses the objection and responses. (e) If you were directed to submit a bid, you may preserve your right to submit a bid by filing the written objection instead of a bid. khammond on DSKJM1Z7X2PROD with RULES2 § 30.416 How does OHA decide whether a bid is successful? OHA will decide that a bid is successful if it meets the following requirements. (a) The bid is equal to or greater than the fair market value of the interest and was timely filed. (b) In cases in which consent of an heir, devisee, or surviving spouse is required for the purchase, the applicable heir devisee, or surviving spouse accepts a bid. (1) OHA may hold a hearing for the purpose of determining whether the applicable heir, devisee, or surviving spouse accepts a bid. (2) If multiple bids are submitted, the applicable heir, devisee, or surviving spouse may choose which bid to accept. (3) If the applicable heir, devisee, or surviving spouse does not accept any bid for his or her property interest, the request to purchase that property interest at probate will be denied. VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 § 30.417 How does the judge notify the parties whether there was a successful bid? (a) When a judge determines that a bid is successful, the judge will issue a Notice of Successful Bid to all bidders, OST, the BIA agency that prepared the probate file, and the BIA agency having jurisdiction over the interest sold. The Notice of Successful Bid will include the following information: (1) The parcel and interest sold; (2) The identity of the successful bidder; (3) The amount of the successful bid; and (4) Instructions to the successful bidder to submit payment for the interest. (b) If no successful bids are received, the judge will issue an order denying the request to purchase the property. § 30.418 When must the successful bidder pay for the interest purchased? The successful bidder must make payment, according to the instructions in the Notice of Successful Bid, of the full amount of the purchase price no later than 30 days after the mailing date of the Notice of Successful Bid. § 30.419 What happens after the successful bidder submits payment? When the judge is notified by BIA that BIA has received payment, the judge will issue an order: (a) Approving the sale and stating that title must transfer as of the date the order becomes final; and (b) For the sale of an interest subject to a life estate, directing allocation of the proceeds of the sale and accrued income among the holder of the life estate and the holders of any remainder interests using 25 CFR part 179. § 30.420 What happens if the successful bidder does not submit payment within 30 days? (a) If the successful bidder fails to pay the full amount of the bid within 30 days, the judge will issue an order denying the request to purchase or the bid (whichever is applicable) and the interest in the trust or restricted property will be distributed as determined by the judge in the decision or distribution order. (b) The time for payment may not be extended. (c) Any partial payment received will be returned. § 30.421 When does a purchased interest vest in the purchaser? If the request to purchase (or a bid submitted by a potential bidder) is approved, the purchased interest vests in the purchaser on the date OHA’s order approving the sale becomes final. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 72093 § 30.422 What will happen to any lease income received or accrued from purchased land interests before the purchased interest vests in the purchaser? Any lease income received or accrued from a property interest before the date the purchased interest vests in the purchaser will be paid to the heir(s), devisee(s), or surviving spouse from whom purchase of the interest was made based on the fractional ownership interests in the parcel as determined in the decision or distribution order. § 30.423 What may I do if I disagree with the judge’s determination to approve or deny a purchase at probate? If you are an interested party who is adversely affected by the judge’s order to approve or deny a purchase at probate, you may file an appeal to the Board within 30 days after the mailing date of OHA’s order approving or denying the purchase at probate. § 30.424 When will the order approving or denying the purchase at probate become final? The order to approve or deny the purchase at probate becomes final at the end of the 30-day appeal period, unless a timely appeal is filed. Subpart N—Miscellaneous 27. Add §§ 30.501 and 30.502 to read as follows: ■ § 30.501 When is joint tenancy presumed? A judge will presume that a testator intended to devise interests in joint tenancy when: (a) A testator devises trust or restricted interests in the same parcel of land to more than one person; and (b) The will does not contain clear and express language stating that the devisees receive the interests as tenants in common. § 30.502 How does a judge resolve conflicts between the anti-lapse provision and the presumption of joint tenancy? If the presumption of joint tenancy and anti-lapse provisions conflict, then the judge will give priority to the presumption of joint tenancy and the share of the deceased devisee will descend to the surviving devisees. ■ 28. Revise newly redesignated § 30.506 to read as follows: § 30.506 When a decedent died intestate without heirs, what law applies to trust or restricted property? The law that applies to trust or restricted property when a decedent died intestate without heirs depends upon whether the decedent died before June 20, 2006 or on or after June 20, 2006. E:\FR\FM\20DER2.SGM 20DER2 72094 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 (a) When the judge determines that a decedent died before June 20, 2006, intestate without heirs, the judge will apply 25 U.S.C. 373a or 25 U.S.C. 373b to address distribution of trust or restricted property in the decedent’s estate. If it is necessary to determine the value of an interest in land located on the public domain, to properly apply 25 U.S.C. 373b, the judge will determine fair market value based on an appraisal or other valuation method developed by the Secretary under 25 U.S.C. 2214. If the interest in land located on the public domain is valued at more than $50,000, the judge’s decision concerning distribution of that interest will be a recommended decision only. (b) When the judge determines that a decedent died intestate on or after June 20, 2006, without surviving lineal descendants, parents, or siblings who are eligible heirs, the judge will apply provisions of the Act to determine distribution of trust or restricted land in the decedent’s estate. (1) If the decedent died without surviving lineal descendants, parents, or siblings who are eligible heirs, and the decedent owned at least 5 percent of an allotment, that interest will be distributed either to the Indian Tribe with jurisdiction over the interest or, if there is no Indian Tribe with jurisdiction, then split equally among the co-owners as of the decedent’s date of death, subject to the exceptions and limitations detailed in 25 U.S.C. 2206(a)(2)(B)–(C). (2) If the decedent died without surviving lineal descendants who are eligible heirs, and the decedent owned less than 5 percent of an allotment, that interest will be distributed either to the Indian Tribe with jurisdiction over the interest or, if there is no Indian Tribe with jurisdiction, then split equally among the co-owners as of the decedent’s date of death, subject to the exceptions and limitations concerning VerDate Sep<11>2014 18:22 Dec 17, 2021 Jkt 256001 small fractional interests detailed in 25 U.S.C. 2206(a)(2)(D). (3) For either paragraph (b)(1) or (2) of this section, the judge will also determine whether the decedent had a surviving spouse, and whether the surviving spouse is entitled to a life estate. ■ 29. Add § 30.507 to read as follows: § 30.507 How will trust personalty be distributed if decedent died intestate on or after June 20, 2006, and the Act does not specify how the trust personalty should be distributed? When the judge determines that a decedent died intestate on or after June 20, 2006, without a surviving spouse or eligible heirs under the Act, and without trust or restricted land over which one, and only one, Indian Tribe has jurisdiction, the judge will direct distribution of trust personalty, including trust funds that were on deposit in the decedent’s IIM account or owing to the decedent as of the decedent’s date of death, as follows: (a) To the decedent’s surviving children, grandchildren, greatgrandchildren, parents, or siblings who are not eligible heirs under the Act, in the order set forth in 25 U.S.C. 2206(a)(2)(B). (b) If trust personalty does not descend under paragraph (a) of this section, then to the decedent’s surviving nieces and nephews, in equal shares. (c) If trust personalty does not descend under paragraph (b) of this section, then to the Indian Tribe in which the decedent was enrolled at the time the decedent died. (d) If trust personalty does not descend under paragraph (c) of this section, then: (1) To the Indian Tribe in which the decedent’s biological parents were enrolled, if both were enrolled in the same Tribe; (2) To the Indian Tribes in which the decedent’s biological parents were PO 00000 Frm 00028 Fmt 4701 Sfmt 9990 enrolled, in equal shares, if each of the decedent’s biological parents was enrolled in a different Tribe; or (3) If only one biological parent was enrolled in an Indian Tribe, to the Indian Tribe in which that biological parent was enrolled. (e) If trust personalty does not descend under paragraph (d) of this section, then: (1) To the Indian Tribe in which the decedent’s biological grandparents were enrolled; if all enrolled biological grandparents were enrolled in the same Tribe; (2) To the Indian Tribes in which the decedent’s biological grandparents were enrolled, in equal shares, if two or more of the decedent’s biological grandparents were enrolled in different Tribes; or (3) If only one biological grandparent was enrolled in an Indian Tribe, to the Indian Tribe in which that biological grandparent was enrolled. (f) If trust personalty does not descend under paragraph (e) of this section, then to an Indian Tribe selected by the judge, in consideration of the following factors: (1) The origin of the funds in the decedent’s IIM account; (2) The Tribal designator contained in the owner identification number or IIM account number assigned to the decedent by BIA; and (3) The geographic origin of the decedent’s Indian ancestors. This action is taken pursuant to delegated authority. Bryan Newland, Assistant Secretary—Indian Affairs. Eric Werwa, Deputy Assistant Secretary—Policy and Environmental Management Exercising the delegated authority of the AS–PMB. [FR Doc. 2021–27257 Filed 12–17–21; 8:45 am] BILLING CODE 4337–15–P E:\FR\FM\20DER2.SGM 20DER2

Agencies

[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 72068-72094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27257]



[[Page 72067]]

Vol. 86

Monday,

No. 241

December 20, 2021

Part III





Department of the Interior





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Bureau of Indian Affairs





25 CFR Part 15











Office of the Secretary

43 CFR Part 30





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American Indian Probate Regulations; Final Rule

Federal Register / Vol. 86 , No. 241 / Monday, December 20, 2021 / 
Rules and Regulations

[[Page 72068]]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 15

Office of the Secretary

43 CFR Part 30

[212A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1094-AA55


American Indian Probate Regulations

AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Department of the Interior (Department) is finalizing 
updates to its regulations governing probate of property that the 
United States holds in trust or restricted status for American Indians, 
in an effort to continually improve the services the Department 
provides to individual Indians and Tribes. These updates allow the 
Office of Hearings and Appeals (OHA) to adjudicate probate cases more 
efficiently by, among other things, establishing an expedited process 
for small, funds-only estates, reorganizing the purchase-at-probate 
process so that estates may be closed more quickly, and specifying 
which reasons justify reopening of closed probate estates. The 
revisions also enhance OHA's processing by adding certainty as to how 
estates should be distributed when certain circumstances arise that are 
not addressed in the statute, and improve notification to interested 
parties by, among other things, requiring posting of probate notices on 
a devoted OHA web page.

DATES: This rule is effective on January 19, 2022.

FOR FURTHER INFORMATION CONTACT: Elizabeth K. Appel, Director, Office 
of Regulatory Affairs & Collaborative Action--Indian Affairs, 
[email protected], (202) 273-4680.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background and History of This Rulemaking
III. Proposed Rule Comments and Responses
    A. Trust Funds for Funeral Services (Sec.  15.301)
    B. Definitions (Sec.  30.101)
    C. Mailed Notice of Probate to Co-Owners (Sec.  30.114)
    D. Determination of Indian Status (Sec.  30.123, Sec.  30.235)
    E. Presumption of Death (Sec.  30.124)
    F. Partition (Sec.  30.125)
    G. Renunciations (Sec. Sec.  30.180-30.192)
    H. Summary Probate Proceedings (Sec. Sec.  30.200-30.209)
    I. Posted and Published Notice of Probate (Sec.  30.211)
    J. Rehearing (Sec. Sec.  30.238-30.242) and Reopening 
(Sec. Sec.  30.243-30.249)
    K. Correction of Non-Substantive Errors in Probate Decision 
(Sec.  30.250)
    L. Inventory Corrections: New Property Added After Probate 
Decision (Sec.  15.404/Sec.  30.251) and Incorrectly Included 
Property (Sec.  15.405/Sec.  30.252)
    M. Purchase at Probate (Subpart M)
    N. Miscellaneous
IV. Overview of Final Rule
    A. Summary of Final Rule
    B. Changes From Proposed Rule to Final Rule
    C. Crosswalk of Current Regulation to New Regulation
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)

I. Executive Summary

    This final rule updates regulations that address how OHA probates 
property that the United States holds in trust or restricted status for 
American Indians. These revisions allow OHA to adjudicate probate cases 
more efficiently by, among other things, establishing an expedited 
process for small, funds-only estates, reorganizing the purchase-at-
probate process so that estates may be closed more quickly, and 
specifying which reasons justify reopening of closed probate estates. 
The revisions also enhance OHA's processing by adding certainty as to 
how estates should be distributed when certain circumstances arise that 
are not addressed in the statute, and improve notification to 
interested parties by, among other things, requiring posting of probate 
notices on a devoted OHA web page.

II. Background and History of This Rulemaking

    The Department probates thousands of estates each year for American 
Indian individuals who own trust or restricted property. The Bureau of 
Indian Affairs (BIA), OHA, and the Office of the Special Trustee for 
American Indians (OST) each play a role in the probate process. BIA 
compiles the information necessary to build a case record (i.e., the 
probate file) and then transfers the record to OHA for a judge to 
adjudicate and issue a final probate decision. In accordance with the 
final probate decision, OST distributes trust funds from the estate and 
BIA distributes the trust or restricted real property.
    After the American Indian Probate Reform Act (AIPRA) was enacted in 
2004, the Department codified implementing regulations at 25 CFR part 
15 for the BIA and OST portions of the probate process and at 43 CFR 
part 30 for the OHA adjudication process. 73 FR 67255 (November 13, 
2008); 76 FR 45198 (July 28, 2011). In 2016 and 2017, BIA reached out 
to Tribes for input on how the probate process was working, hosting a 
Tribal listening session in Spokane, Washington, on June 27, 2016, 
hosting two Tribal consultation teleconference sessions on July 12 and 
13, 2016, and accepting written comment through January 4, 2017. In 
2019, the Department identified issues in the existing regulations and 
sought input, through an advance notice of proposed rulemaking (ANPRM), 
on where improvements may be made through regulatory change. 84 FR 
58353 (October 31, 2019).
    In January 2021, the Department then published a proposed rule. 86 
FR 1037 (January 7, 2021). In the preamble to the proposed rule, the 
Department addressed each of the six comment submissions it received in 
response to the ANPRM. During the public comment period, the Department 
hosted a Tribal consultation session on February 9, 2021, and a public 
meeting on February 11, 2021. The Department also held an additional 
public session at the request of Tribal members on March 9, 2021. The 
original deadline for comments on the proposed rule was March 8, 2021; 
however, in response to requests to extend the comment deadline, the 
Department announced on its website in March that it would be extending 
the deadline for comments to April 8, 2021, and later to April 29, 
2021. 86 FR 19585 (April 14, 2021).

III. Proposed Rule Comments and Responses

    The Department received 24 written comment submissions on the 
proposed rule, including three from Tribes. The Department also 
received several comments during its Tribal consultation and public 
hearing sessions. The following provides a summary of the comments and 
the Department's responses.

[[Page 72069]]

A. Trust Funds for Funeral Services (Sec.  15.301)

    The two Tribes that commented on Sec.  15.301 expressed their 
support of increasing the amount of funding available for funeral 
services from decedents' Individual Indian Money (IIM) accounts. One 
Tribe also expressed support for the proposed removal of the 
requirement for the IIM account to have a specific balance in order for 
funds to be disbursed for funeral services.
    Response: The final rule adopts the proposal to increase the 
funeral service funding available from $1,000 to $5,000 and remove the 
requirement for the IIM account to have a specific balance in order for 
funds to be disbursed for funeral services.
    One Tribe noted that in some circumstances, the descendant's Tribe 
may pay for funeral costs and that BIA should ensure the Tribe has not 
paid, to safeguard Individual Indian Money (IIM) accounts. An 
individual commenter also noted that the Tribe may pay for funeral 
arrangements.
    Response: To address these comments, the final rule adds a 
condition to receiving funds that the requestor has not received 
sufficient funds from the decedent's Tribe to pay the entire cost of 
the funeral arrangements. See Sec.  15.301(a)(2).
    One commenter requested that the creditor claims regulations that 
were in place prior to enactment of AIPRA be restored.
    Response: The proposed rule did not propose any changes to creditor 
claim provisions beyond increasing the amount of funding from IIM 
accounts available for funerals. The creditor claims regulations that 
were in place prior to the enactment of AIPRA were replaced through 
public notice and comment rulemaking in 2005 and 2008. See 70 FR 11803 
(March 9, 2005); 73 FR 67255 (November 13, 2008).

B. Definitions (Sec.  30.101)

    A commenter requested a new definition for ``co-owner'' and for the 
phrase ``potential or actual heirs who may or will inherit solely as 
co-owners.''
    Response: The final rule adds a new definition for co-owner in 
Sec.  30.101, to mean persons who own an undivided trust or restricted 
interest in the same parcel in which the decedent owns an interest. No 
definition of the other phrase was added because the proposed 
provisions using that phrase were not adopted in the final rule.

C. Mailed Notice of Probate to Co-Owners (Sec.  30.114)

    Four individual commenters objected to the proposed rule's approach 
to providing notice of the probate to potential heirs who may inherit 
solely as co-owners (i.e., persons who own an undivided trust or 
restricted interest in the same parcel in which the decedent owns an 
interest). The proposed rule at Sec.  30.114 stated that potential 
heirs who may inherit solely based on their status as co-owners would 
not receive mailed notice of a probate proceeding unless they 
previously filed a request for notice with BIA or OHA. The commenters 
who objected to this approach stated that the co-owners should continue 
to receive mailed notice of the probate without having to file a 
request to receive notice.
    Response: To address commenters' objections, the final rule retains 
the current regulations' approach, which requires that all interested 
parties--including co-owners, when they are potential heirs--receive 
mailed notice of probate proceedings. See Sec.  30.114 and definition 
of ``interested party'' in Sec.  30.101. Nevertheless, it is important 
to note that a co-owner is not necessarily an heir, and the statute 
requires actual written notice only to ``all heirs.'' See 25 U.S.C. 
2206(m). A co-owner may potentially be an heir in only one 
circumstance: If a decedent dies without any eligible person heirs as 
listed in AIPRA's order of succession, and there is no Tribe with 
jurisdiction over the allotment.
    One commenter asked how co-owners would know of the opportunity to 
purchase decedent's interest at probate if they are not notified of the 
probate.
    Response: Under both the current and final rule, co-owners receive 
mailed notice if they are potential heirs; all other co-owners receive 
notice through posting.

D. Determination of Indian Status (Sec.  30.123)

    A Tribe stated its support of limiting determinations as to whether 
heirs and devisees have Indian status in Sec.  30.123 to those 
situations where the determinations are necessary for the probate 
decision and stated that this change would increase efficiency.
    Response: The final rule includes this proposed change at both 
Sec.  30.123 and Sec.  30.235, so that judges will make the 
determination of Indian status only when relevant.
    An individual stated that determining Indian status cannot be 
eliminated because it is relevant in determining whether a person takes 
in fee or is eligible for Tribal membership. This individual stated 
that it is more difficult to identify when Indian status does not have 
to be determined than to determine the status for everyone, and 
suggested a chart needs to be prepared to show all situations in which 
Indian status is relevant.
    Response: The final rule does not eliminate the requirement to 
determine Indian status. The final rule adopts the proposed rule 
provision requiring a determination of Indian status ``where 
relevant.'' There are situations where Indian status is not relevant, 
and under the final rule, the judge would not issue a determination of 
Indian status in those situations; however, the judge would issue a 
determination of Indian status when that status is relevant.

E. Presumption of Death (Sec.  30.124)

    A Tribe who commented on the proposed presumption of death 
provisions agreed that the six-year period should begin on the date of 
the last known contact with the absent person and stated that allowing 
for a presumption will improve efficiency while allowing parties to 
present evidence to rebut the presumption if appropriate.
    Response: The final rule includes these proposed presumption of 
death provisions.
    An individual stated their opposition to the proposed presumption 
of death provisions, stating that there are a lot of people who are 
absent for six years and that should not allow a presumption that they 
no longer exist without evidence of the person's routine daily 
activities and social relationships and documentation of the measures 
taken to locate the person.
    Response: The requirements for BIA to initiate a probate case when 
a person has been absent without explanation for six or more years are 
at Sec.  15.106 and would not change under either the proposed or final 
rule. The final rule adopts the proposed rule's provisions for allowing 
the judge to presume that the person died at a certain time (i.e., the 
date of last contact based on signed affidavits or sworn testimony by 
those in a position to know that facts and other records show that the 
person has been absent from his or her residence for no apparent 
reason, or has no identifiable place of residence and cannot be 
located, and has not been heard from for at least 6 years.).

F. Partition (Sec.  30.125)

    A Tribe who commented on the proposed partition section at Sec.  
30.125 noted that it is a good idea to allow someone to partition their 
land by will.

[[Page 72070]]

    Response: The final rule includes these proposed provisions 
allowing for partition by will.

G. Renunciations (Sec. Sec.  30.180-30.192)

    The Tribe who commented on the proposed renunciation provisions 
expressed support of the expanded opportunities for renunciation to 
protect property from going out of trust.
    Response: The final rule adopts the proposed renunciation 
provisions expanding opportunities for renunciation.
    An individual stated that there is no downside to allowing maximum 
opportunities for parties to renounce inheritance of interests. A group 
of individuals commenting together recounted their experience with a 
Tribe renouncing an interest in a specific estate.
    Response: The final rule increases the opportunity for 
renunciations by allowing renunciations at the rehearing stage. To 
clarify that entities, in addition to individuals, may renounce, the 
final rule explicitly adds in Sec.  30.180 that entities may renounce.

H. Summary Probate Proceedings (Sec. Sec.  30.200-30.209)

    An individual objected to the proposed rule's approach to summary 
probate proceedings as a violation of due process because affected 
parties would not receive notice of the probate before the probate 
decision is issued.
    Response: The final rule adopts the proposed rule's approach to 
notice in summary probate proceedings because there is no violation of 
due process for the following reasons: (1) While interested parties do 
not receive notice of the summary probate until a probate decision is 
issued, at that time, the interested parties have the right to file a 
request for review of the probate decision and the probate decision 
does not become final unless and until the 30-day period for them to 
request review has expired without any interested party filing a timely 
request. This approach mirrors the current summary probate proceeding 
approach, except that the term ``proposed summary probate decision'' is 
no longer used. (2) The proposed and final rule also limit the estates 
that are subject to summary probate proceedings by lowering the dollar 
threshold (from $5,000 to $300), meaning that interested parties in 
more estates will receive formal probate proceeding notice. The amount 
of due process that is appropriate depends upon the circumstances, and 
this rule's approach appropriately considers the circumstances. (3) 
Other revisions to the summary probate process that allow estates to be 
handled more efficiently obviate the need for notice prior to the 
issuance of the summary probate decision: Elimination of the option to 
convert the proceedings to formal probate proceedings, elimination of 
consideration of claims against the estate, and extending the deadline 
for renouncing to 30 days after the mailing of the probate decision. 
The probate decision under the proposed rule would then not only set 
out and explain the distribution but also provide instructions on how 
to renounce or seek review of the decision. This proposal also promotes 
due process by providing the opportunity for anyone adversely affected 
by a summary probate proceeding decision to file a request for review 
and streamlines that review process by allowing for reconsideration 
rather than de novo review.
    A commenter stated that eliminating hearings for simple estates 
undermines due process and that more due process is owed because of the 
trust responsibility. Another commenter stated that due process should 
be afforded even for small estates.
    Response: Due process is still being afforded to interested parties 
in summary probate proceedings because, as explained above, the summary 
probate decision does not become final until the period for interested 
parties to request review has passed. As noted above, this approach 
mirrors the current approach except that the probate decision is no 
longer being called a ``proposed summary probate decision.''
    A Tribe stated their support of disallowing claims against small 
estates in summary probate proceedings. An individual asked for an 
explanation for disallowing claims.
    Response: The final rule continues to disallow claims with the goal 
of efficient handling of low value cash-only estates.
    A commenter stated that summary probate proceedings should not be 
applied to estates containing real property.
    Response: Summary probate proceedings are available only for cash-
only estates.
    One Tribe objected to reducing the monetary threshold for estates 
from $5,000 to $300 for summary probate.
    Response: The Department considered this comment and determined 
that the summary process will be more effective if it focuses on 
estates that are valued at $300 or less. The Department concluded that 
there is a value to conducting formal probate proceedings for cash only 
estates valued between $301 and $5,000.
    The same Tribe objected to allowing 30, rather than 10, days in 
Sec.  30.208 for OHA to notify the agencies and interested parties that 
a request review of a summary probate decision has been filed, noting 
that the extension conflicts with the stated purpose of the revisions 
to make the process more efficient.
    Response: The rule expanded the time for OHA to notify agencies and 
interested parties that a request for review of a summary probate 
decision has been filed, because this expansion is necessary to allow 
OHA flexibility in balancing workloads and the maximum additional 20 
days this could add to the process is outweighed by the efficiencies 
gained from eliminating the option for converting summary probate 
proceedings to formal probate proceedings.
    One commenter suggested the Department use a ``transfer on death 
deed'' for small estates, rather than the summary probate process to 
allow assets to transfer to a single beneficiary immediately upon 
decedent's death without having to go through any OHA process.
    Response: The Department has reviewed the possibility of allowing 
for ``payable on death'' provisions but has determined that a 
legislative change is necessary to provide authority for such an 
approach.
    An individual commenter requested the definition of ``summary 
probate proceeding'' and the provision at Sec.  30.200(b) be revised to 
add the phrase ``and does not include any trust or restricted land.''
    Response: The final rule does not incorporate these edits because 
the definition and Sec.  30.200(b) are both clear in saying that the 
estate includes ``only an IIM account'' and ``only funds in an IIM 
account,'' respectively.

I. Posted and Published Notice of Probate (Sec.  30.211)

    Two Tribes and two individuals expressed concern about the proposal 
to allow for no physical posting of the formal probate proceeding if 
the agency office is closed or inaccessible or if extenuating 
circumstances prevent personnel physically posting. One of these Tribes 
stated that it would be helpful to post at the local BIA agency when 
possible. The other Tribe stated that there should be physical posting 
in at least one public location.
    Response: To address these comments, the final rule requires 
physical posting in at least one location: The agency or, if posting at 
the agency is not possible due to the agency office being closed or 
inaccessible, then at a conspicuous place near that agency. The

[[Page 72071]]

final rule does not adopt the proposal to allow for no physical posting 
in some circumstances and deletes the condition for extenuating 
circumstances preventing personnel physically posting as well as the 
proposed definition for ``extenuating circumstances'' in Sec.  30.101.
    Two Tribes expressed their support for posting hearing notices on a 
central website. One of the Tribes recommended a centralized website 
for all notices related to probate cases and other non-probate matters. 
An individual also expressed support for posting notices on OHA's 
website.
    Response: The final rule includes the proposed provision requiring 
OHA to post probate notices on its website. BIA is also working on 
making additional appropriate information on the probate process 
available on its website.
    One Tribe agreed with the proposal to remove the requirement for 
newspaper notices as no longer necessary; however, another Tribe noted 
that publication in the Tribal newspaper may better reach elders in the 
community.
    Response: The final rule adds that an OHA judge may cause notice to 
be published in a local newspaper or other publication if the judge 
determines that additional notice is appropriate. See Sec.  30.211(d).

J. Rehearing (Sec. Sec.  30.238-30.242) and Reopening (Sec. Sec.  
30.243-30.249)

    The Tribe that commented on the rehearing and reopening provisions 
supported imposing limitations on reopening to avoid prolonging the 
probate, limiting who may seek rehearing to only interested parties, 
requiring a rehearing to be based on correcting a substantive error, 
and allowing a rehearing petition to be considered as a reopening 
petition if not timely filed so the petitioner would not have to 
refile. The Tribe also supported prohibiting successive petitions for 
rehearing by the same party to prevent parties from abusing the process 
and supported the limit of one year (from discovery of the error) for 
reopening when an individual or BIA on behalf of an individual for 
reopening and requiring a showing of an error of fact or law.
    Response: The final rule adopts all these proposed provisions.
    An individual stated the provisions barring persons from seeking 
post-decision review because they were not present at the original 
hearing does not account for how poor U.S. mail service is on Indian 
reservations.
    Response: Neither the proposed nor final rule bar persons who were 
not present at the original hearing from seeking post-decision review. 
See Sec.  30.238(d)(1) (``whether or not you attended the hearing.'')
    The same individual objected to the 30-day period for seeking a 
rehearing (at Sec.  30.238(a)) and stated that the 60-day period 
allowed under regulations in place before AIPRA was enacted should 
never have been changed.
    Response: The period for seeking reopening has been 30 days since 
2008 and there have been no practical issues with that time period, as 
most challenges are resolved quickly and 60 days needlessly prolongs 
the process.
    A commenter objected to limitations on petitions to reopen, noting 
that individuals fail to participate in probates for legitimate 
reasons.
    Response: The limitations on petitions to reopen apply to those who 
received proper notice of the probate and so had the opportunity to 
participate in the probate but did not avail themselves of that 
opportunity.
    An individual stated that any legitimate family member should be 
allowed to petition the judge to reopen a probate.
    Response: Family members who are interested parties should receive 
sufficient notice and opportunity to participate in the probate; if 
they have not received sufficient notice, then they may seek reopening 
if proper grounds are shown.
    A Tribe stated that an explicit timeframe, such as 10 days, should 
be added for OHA to notify BIA of the filing of a petition for 
rehearing, rather than ``as soon as practicable.''
    Response: The final rule retains the phrase ``as soon as 
practicable'' rather than adding a specific period because this phrase 
recognizes the urgency but allows for more flexibility than a specific 
number of days would afford.
    An individual stated that the season for reopening petitions to be 
filed runs indefinitely under proposed Sec.  30.243, and that an end 
point should be added to establish finality and certainty.
    Response: The final rule does not add an outer bound deadline 
because a deadline would limit the judge's discretion in balancing 
whether the need to reopen to correct the error outweighs the interests 
of the public and heirs and devisees in the finality of the probate 
proceeding.
    An individual suggested certain clarification edits, including 
adding to Sec.  30.241 that a rehearing is for the same probate and 
adding to Sec.  30.243 that reopening petitions are filed with the 
judge.
    Response: The final rule incorporates these suggested edits.
    The same individual suggested adding a new paragraph (c) to Sec.  
30.245, regarding the legal standard for reopening, to require the 
judge to notify interested parties of a determination to reopen.
    Response: The judge notifies interested parties under Sec.  
30.248(c) of the final order. This final rule provision is broader than 
the current regulations, which require notification only to affected 
parties.
    This individual also suggested adding to Sec.  30.246(c)(6), that 
in considering the interest in administrative finality the judge should 
consider ``a concise justification of why and how the information 
provided in support of the petition to reopen would lead the judge to 
determine that the need to correct the error outweighs the interests of 
the public and heirs or devises in the finality of the probate 
proceedings.''
    Response: The final rule does not add this additional language 
because the substance of the suggested language is already set out in 
paragraphs (a) and (b), as well as the introductory language in 
paragraph (c) of Sec.  30.246.
    The individual commenter expressed agreement with Sec.  
30.248(b)(2)(iii) and recommended adding a requirement to suspend any 
changes to title to the underlying property while the reopening 
procedures are pending.
    Response: The final rule states that the judge will suspend further 
distribution of the estate or income during the reopening proceedings, 
if appropriate.

K. Correction of Non-Substantive Errors in Probate Decision (Sec.  
30.250)

    A Tribe expressed support for authorizing BIA to make non-
substantive corrections to a probate decision but noted that OHA should 
have final authority over any corrections.
    Response: Under the proposed and final provisions, BIA contacts OHA 
in all cases to issue a correction to a probate decision.
    Another Tribe expressed general support for allowing OHA to address 
typographical and other non-substantive errors in a probate decision 
without reopening a probate case, but recommended clearly defining what 
would be a ``non-substantive error.''
    Response: The regulation at Sec.  30.250 states that errors are 
non-substantive if they are merely typographical, clerical, or their 
correction would not change the distribution of a decedent's property.

[[Page 72072]]

L. Inventory Corrections: New Property Added After Probate Decision 
(Sec.  15.404/Sec.  30.251) and Incorrectly Included Property (Sec.  
15.405/Sec.  30.252)

    A Tribe supported the proposed process for reconsideration of a 
distribution order directing distribution of additional property or 
modifying distribution, rather than requiring parties to appeal a final 
order.
    Response: The final rule includes the proposed process for 
reconsideration of the distribution order and clarifies that if an 
interested party raises an inventory dispute in the petition for 
reconsideration, the judge may order that the distribution order be 
vacated and remand BIA's petition to the BIA to resolve the inventory 
dispute. See Sec.  30.253(f)
    An individual stated that the regulations that were in place prior 
to the enactment of AIPRA worked fine by allowing for administrative 
modifications.
    Response: The regulations that were in place prior to the enactment 
of AIPRA are no longer relevant because enactment of AIPRA changed the 
legal landscape.
    An individual stated that the probate decision should include 
verbiage stating that if any other property is later discovered that 
should have been part of the estate, then it must be distributed 
according to the decision, rather than having to reopen the case to add 
property.
    Response: Under AIPRA, property may pass differently depending on 
whether the property constitutes greater than or less than 5% of 
undivided interests. Specific will language, renunciations, special 
statutes, or approved Tribal probate codes may also lead to property 
passing differently than set out in a decision. Judges direct 
distribution of property specifically identified in the inventory. 
Adopting the approach suggested by the commenter would put BIA, rather 
than the judge, in the position of having to determine the appropriate 
distribution.
    An individual suggested adding a deadline for petitions to add or 
omit property from the inventory.
    Response: The final rule does not adopt this suggestion because 
imposing a limitation would result in inaccurate distributions and 
property that is never distributed.
    An individual suggested adding ``and/or minerals only estates'' 
following ``trust or restricted land'' in Sec.  15.404(a)(1).
    Response: The final rule does not adopt this suggestion because 
minerals only estates are already included in ``trust or restricted 
land'' for purposes of this section.
    An individual stated that ``trust or restricted property'' is used 
in Sec.  30.251 for the first time in the proposed rule and suggested 
using ``trust or restricted land'' for consistency.
    Response: The current regulations and final rule define both 
``trust property'' and ``restricted property.'' ``Trust land'' is used 
in some instances to distinguish from ``trust property'' because 
``trust property'' includes personalty.
    An individual requested clarification of the phrase ``a 
certification that all interested parties have been associated to the 
case and their names and addresses are current'' that appears in Sec.  
15.404(a)(5), Sec.  15.405(a)(4), Sec.  30.251(b)(5), and Sec.  
30.252(b)(4).
    Response: The certification the commenter is inquiring about is 
certification from the BIA to OHA that all the interested parties have 
been associated to (i.e., identified as interested parties in) that 
particular case in the Department's probate system. No change was made 
to the rule to clarify because the language relates to an internal 
Departmental procedure.
    An individual noted that Sec.  30.252 appears to repeat the process 
covered in Sec.  15.405(a).
    Response: Part 15 addresses BIA processes, while Part 30 addresses 
OHA processes; each has a role in the process as set out in the 
applicable part.
    An individual suggested an edit to Sec.  30.252(b) to clarify who 
is petitioning for the removal of property and who is reviewing the 
petition.
    Response: The final rule changes the pronoun ``it'' to ``BIA'' to 
clarify that BIA removes the property then petitions OHA for an order 
addressing any changes in distribution resulting from the correction.
    An individual requested adding a provision to Sec.  30.252(d) 
requiring BIA to suspend further distribution of the estate during 
reopening and suspend any changes to title to the underlying property 
during the reopening proceeding.
    Response: The Department determined that the suspension of the 
estate distribution while awaiting OHA's determination is more suited 
to internal procedures and is considering possible modifications 
therein.
    An individual requested adding a provision to Sec.  30.252 to 
require the judge to notify interested parties of the determination to 
reopen.
    Response: Notifications to interested parties are provided in Sec.  
30.252(e).
    An individual provided a personal account of a probate in which 
they believe errors in the inventory of decedent's land resulted in 
loss of an inheritance.
    Response: The procedures in these regulations provide safeguards to 
allow for corrections to estate inventories.

M. Purchase at Probate (Subpart M)

    An individual stated that changes to the purchase at probate 
process in the regulations must be preceded by substantive amendments 
to AIPRA.
    Response: AIPRA's existing provisions authorize purchase at 
probate, which these regulations implement.
    A commenter stated that the proposed rule would eliminate the right 
of ``eligible purchasers'' to notice when OHA receives a request to 
purchase at probate and would put the onus on them to tell BIA that 
they wish to be told of such purchase offers. The commenter objected 
saying the approach undermines basic concepts of justice and fair play. 
Another individual commenter also stated that all eligible purchasers 
should be kept notified by mail.
    Response: Neither the proposed nor final rule would eliminate the 
right of eligible purchasers to notice; rather, the proposed and final 
rule add an opportunity for co-owners to receive mailed notice when 
they otherwise would not have. Mailed notice of the probate hearing 
includes an attached inventory of a decedent's interests in trust or 
restricted land, and notifies recipients of the possibility of purchase 
at probate of those interests. See Sec.  30.214(g). AIPRA requires that 
such notice be mailed only to three groups: Eligible heirs, other 
devisees, and the Indian Tribe with jurisdiction over the interest. See 
25 U.S.C. 2206(o)(4).
     An heir is any individual or entity eligible to receive 
property from a decedent in an intestate proceeding.
     A devisee is a person or entity that receives property 
under a will.
    An ``eligible purchaser'' by contrast, is one of the following:
     An heir or devisee who is receiving an interest in the 
same parcel of land;
     Any co-owner,
     The Tribe with jurisdiction over the parcel containing the 
interest, or
     The Secretary on behalf of the Tribe. See 25 U.S.C 
2206(o)(2).
    Co-owners are eligible purchasers, but are heirs only in certain 
limited circumstances. In cases in which the co-owners are also heirs, 
the co-owners will receive mailed notice (of both the hearing and the 
opportunity to purchase). If co-owners are not heirs, OHA is not 
statutorily required to send written notice to those co-owners and 
doing so would significantly delay the

[[Page 72073]]

resolution of cases. See 25 U.S.C. 2206(o)(4)(B). Instead, under the 
current process and the proposed and final rule process, co-owners who 
are not heirs receive notice of a probate proceeding through posting. 
The proposed and final rule provide an opportunity for co-owners who 
are not heirs to receive notice. Co-owners may receive mailed notice 
simply by notifying BIA in writing that they wish to receive it. See 
Sec.  30.413(b)(5). This opportunity for notice is beyond what is 
required by the statute and what is provided for in the current 
regulations.
    An individual commenter expressed concern with the proposed rule's 
approach to consent for purchase at probate in Sec.  30.403, noting 
that the proposed rule would place the responsibility on the heir or 
devisee to state their unwillingness to sell the property.
    Response: The final rule adds provisions to make clear that the 
heir or devisee must affirmatively consent in order for a purchase at 
probate to occur (rather than state their unwillingness to sell the 
property to stop a purchase at probate from occurring). The final rule 
also explicitly states that consent may not be presumed.
    An individual objected to the ability of the Tribe to purchase 
without consent when decedent's interest at the time of death was less 
than 5 percent of the entire undivided ownership of the land. This 
individual also opposed that the Secretary can give Tribes the 
resources to purchase the interest but does not extend that financial 
support to individual heirs and devisees. Another individual also 
stated that it is not fair to allow the Secretary to provide financial 
assistance only to the Tribe to purchase at probate and not individual 
heirs and devisees.
    Response: The provision allowing the Tribe to purchase without 
consent when the decedent's interest at the time of death was less than 
5 percent of the entire undivided ownership of the land and the 
provision allowing the Secretary to provide resources to the Tribe for 
the purchase are statutory provisions that are not being changed by 
these regulations. See 25 U.S.C. 2206(o)(5). Under the statute and 
regulations, if the heir or surviving spouse is a member of or eligible 
for membership in the Tribe, then consent is required. No statutory 
authority exists for the Secretary to provide resources to individuals 
who wish to purchase property at probate.
    An individual asked whether purchase at probate requires a majority 
consent of the heirs and devisees or if each individual heir and 
devisee must consent to sell his or her interest.
    Response: Each heir and devisee must consent for their interest to 
be purchased at probate, under both the current regulations and this 
final rule.
    A Tribe stated that the regulations should apply the valuation of 
mineral interests used in Interior's Land Buy-Back Program to purchase 
at probate of minerals-only interests.
    Response: Under AIPRA, a judge may not approve a purchase at 
probate for less than fair market value of the real property interest. 
See 25 U.S.C. 2206(o)(4)(A). Interior's Land Buy-Back Program for 
Tribal Nations is a specific time-limited program that is working under 
particular authorizations which do not apply to probate.
    An individual stated that individual Indians who are members of the 
Tribe with jurisdiction over the land and who own a majority of the 
interests in a tract or the largest individual interest should have 
either the first option to purchase or a right of first refusal to 
purchase any other undivided interest in the tract.
    Response: Individuals who own an undivided interest in a tract of 
land can seek to purchase their co-owners' interests at any time, 
outside of probate. Purchase at probate provides no benefit to co-owner 
purchasers over purchasing during the decedent's lifetime, as each 
seller's consent is still required. AIPRA does not provide authority 
for the regulations to grant a first option to purchase or right or 
first refusal to Tribal members. AIPRA does at times allow the heir or 
devisee to select the purchaser, however. See, e.g., 25 U.S.C. 
2206(o)(3)(B).
    An individual stated that the U.S. Government should ensure that 
heirs are aware of Tribal governments' ability to purchase property and 
outline the heirs' right to oppose the sale.
    Response: AIPRA provides that the Tribe with jurisdiction is an 
eligible purchaser. The judge will ensure that heirs or devisees are 
aware of the purchase process through written decisions and orders 
issued in a particular case. The judge will notify heirs or devisees as 
to whether consent is required. Heirs or devisees who disagree with a 
finding that their consent to a purchase is not required can challenge 
that finding by seeking rehearing.
    This individual asserted that her Tribe does not have the authority 
to participate in purchase at probate because the Tribe's constitution 
includes a provision stating that the Tribe may not regulate the 
inheritance of allotted lands within the Tribe's jurisdiction.
    Response: A Tribe's participation in purchase at probate as an 
eligible purchaser is substantively distinct from a Tribe's action to 
regulate the inheritance of property.

N. Miscellaneous

    One individual stated that the proposed rule's attempt to define 
how trust personalty will be distributed in Sec.  30.507 is an 
impermissible attempt to address a defect in the legislation through 
regulations.
    Response: The proposed and final rule at Sec.  30.507 fill a gap 
using the Secretary's authority where the statute is silent.
    A Tribe expressed support for the proposed change clarifying joint 
tenancy will be presumed in Sec.  30.501 where a testator devised their 
interest to more than one person.
    Response: The final rule includes this proposed change.
    One individual asked how BIA and OHA identify the property that is 
included in the estate, and whether it includes land and mineral rights 
and IIM accounts.
    Response: In preparing for the probate process, BIA checks the 
system of record for land, which includes all trust or restricted land 
and mineral interests, and checks the Trust Funds Accounting System 
(TFAS) to determine the IIM account assets on record held by decedent.
    A commenter stated that there should be language in the regulations 
for how a valuation is conducted and the expertise needed to issue a 
valuation.
    Response: These regulations are specific to probate; in this 
context, valuation is relevant to purchase at probate. The final rule 
adopts the proposed rule's language at Sec.  30. 411(a) requiring 
compliance with USPAP or other approved valuation method.
    One Tribe and one individual recommended establishing and enforcing 
timelines for completion of the probate process to improve timeliness.
    Response: The completion of a probate is dependent on many factors 
that are outside of BIA and OHA's control including the cooperation of 
the family in providing documentation for the probate file. These 
factors, along with the varying levels of complexity among probate 
cases prevent the Department from imposing specific timeframes.
    An individual requested the regulations include a policy to protect 
individual Indians' property from being taken by Tribal governments and 
others and noted that the BIA mission includes protection of trust 
assets of American Indians.

[[Page 72074]]

    Response: The BIA strives to meet its mission in all aspects of the 
services it provides to individual Indians and Tribes. To the extent 
that the commenter is requesting that BIA refuse to allow Tribes to 
purchase interests at probate, the Department is unable to adopt this 
suggested approach because it would be contrary to direction provided 
by Congress in AIPRA.
    A few individuals stated that Federal policy is being geared to 
benefit Tribes over individual Indians.
    Response: The final rule does not benefit Tribes over individual 
Indians in any manner beyond what is required to implement the statute.
    An individual suggested that the Federal Government should provide 
ongoing information about AIPRA to Tribal citizens.
    Response: The Department provides information on AIPRA and the 
probate process at https://www.bia.gov/bia/ots/dop/your-land.
    A Tribe requested confirmation that the rule does not affect its 
Secretarially approved inheritance code.
    Response: These regulatory changes do not affect Secretarially 
approved Tribal probate codes. The Department intends to continue 
honoring and applying those Secretarially approved Tribal probate 
codes.
    An individual requested adding to Sec.  15.202(b)(6), addressing 
what must be included in the probate file if the estate includes only 
cash, provisions similar to (a)(12) (``Documentation of any payments 
made on requests filed under the provisions of Sec.  15.301 [Funds for 
funeral services]'') and (a)(13) (``All the documents acquired under 
Sec.  15.105'').
    Response: The final rule adds these provisions as suggested.
    A commenter stated that a copy of the probate file should be sent 
to each interested party along with the notice of hearing.
    Response: This comment relates to Sec.  15.504 in the current 
regulations, which was not proposed for change and is not being 
changed. The Department allows interested parties access to probate 
files, but does not automatically send copies of the files to every 
interested party because doing so would not be efficient and would risk 
disclosure of personally identifiable information.
    An individual stated that BIA should have to correct their errors 
in front of affected family and the judge.
    Response: Property is not added or removed to an estate as a result 
of corrections of mistakes on inventories under this section, but 
because of a situation such as where the decedent inherits additional 
property or there was a probate order change for a predeceased 
decedent.
    A few individuals commented with requests for BIA to store wills or 
assist individuals with writing wills. One individual asked how BIA 
obtains access to wills to probate them.
    Response: These regulations do not address storage or writing of 
wills. BIA no longer assists individuals with writing wills and relies 
on family members to provide the decedents' wills. It is each 
testator's choice to communicate to family members where the will is 
located and how to gain access to it.
    A commenter stated that interested parties have a right to legal 
counsel but many do not have access to legal counsel either because 
they cannot afford or cannot find counsel with experience in the field 
of Federal probate. This commenter stated that the lack of access to 
counsel combined with the complexity of Indian probate limits due 
process.
    Response: Nothing in these regulatory changes affects interested 
parties' right or ability to engage legal counsel in a probate case. 
OHA makes every effort to provide due process to interested parties, 
including unrepresented parties, in probate cases.
    Several individuals commented on aspects of AIPRA, such as the 
single heir rule and whether adopted children should be considered 
heirs, that are not affected by these regulations.
    Response: Nothing in these regulatory changes affects the single 
heir rule or whether adopted children are considered heirs. The 
Department encourages individuals who would like to provide their trust 
or restricted property to certain people to either write a will or 
convey that property through a gift deed during their lifetime; 
otherwise, the land will pass by intestate succession according to 
applicable law.

IV. Overview of Final Rule

    The Department is finalizing revisions to its regulations governing 
probate to provide due process while allowing probate cases to be 
closed so that distribution to heirs and devisees may occur more 
quickly. Each open probate case has the potential to create ripple 
effects of uncertainty as heirs and devisees become decedents 
themselves. The Department recognizes both the financial and emotional 
toll open probate cases take on families and, with this final rule, 
aims to provide certainty for families and future generations more 
expeditiously.

A. Summary of Final Rule

    This final rule makes a number of changes throughout the probate 
regulations to eliminate ambiguities and procedural delays. 
Specifically, the rule:
     Overhauls the process and criteria for summary probate 
proceedings, to establish a process for very small estates, to include 
estates that contain no interests in trust or restricted land and that 
include only funds (no other trust personalty) of $300 or less. The 
expedited process for these small estates will allow OHA to adjudicate 
the cases based on the probate file alone, while allowing anyone 
adversely affected by the decision a limited time to seek review.
     Eliminates the need for the judge to determine the status 
of eligible heirs or devisees as Indian when not relevant to the 
probate decision;
     Allows OHA to issue a correction order to correct non-
substantive and typographical errors without reopening the probate 
case;
     Revises processes for adding and removing property from an 
estate inventory when it is discovered after issuance of the probate 
decision that additional property must be added to an estate inventory 
or that property was incorrectly included in the estate inventory, and 
revises processes for challenging these types of decisions through 
reconsideration rather than appeal to the IBIA;
     Allows heirs and devisees to renounce their interests at 
hearings (having their written declarations acknowledged before a 
judge) and allows them to renounce not just prior to issuance of the 
probate decision, but also within 30 days of the decision, upon 
rehearing, or when additional property is added to the decedent's 
estate.
    The final rule also includes revisions to expand notice to 
interested parties to provide that, in addition to mailing notice to 
heirs and devisees and others listed in Sec.  30.114, OHA:
     Will post notice of formal probate proceedings on its 
website;
     Will physically post notice at the agency location or, if 
the agency office is closed or inaccessible, at a conspicuous location 
near the agency; and
     May cause notice to be published in a local newspaper or 
other publication if the judge determines that additional notice is 
appropriate.
    The rule's requirement for OHA to post on its website accommodates 
the increased use of telephonic and other alternatives to in-person 
hearings, which are occurring and are anticipated

[[Page 72075]]

to continue to occur as a result of technological advances. Posting 
notice on OHA's website also establishes one location that is available 
for anyone to access regardless of residency.
    The final rule clarifies terminology and states what happens when 
various eventualities arise, which will help judges decisively address 
the issues and provide clarity for heirs and devisees throughout the 
process. For example, the rule delineates:
     That there is one probate ``decision,'' which results from 
the summary probate proceeding or formal probate proceeding, and all 
other written rulings issued by judges are ``orders,'' such as an order 
on rehearing, an order on reopening, or a distribution order;
     The evidence a judge may rely on to presume that an 
individual has died and their date of death;
     How a judge will partition an allotment when a will 
attempts to divide an allotment into two or more distinct portions and 
devises at least one of those portions;
     Who receives personal, mailed notice of a formal probate 
proceeding and how public notice is posted;
     Rehearing and reopening processes and how they relate to 
each other;
     The meanings of joint tenancy and tenants-in-common and 
how the presumption of joint tenancy and the anti-lapse provision each 
operate in the determination of heirs and devisees;
     How trust personalty will be distributed when there are no 
eligible family heirs, and when there are either no land interests in 
the decedent's estate or there are land interests within the 
jurisdiction of more than one Tribe.
    The final rule also overhauls the purchase at probate process. The 
current purchase at probate provisions are unwieldy in their fit with 
the formal probate proceedings and result in probate cases being kept 
open indefinitely while the purchase at probate process, including 
appraisals/valuations, continues. Additionally, because the current 
provisions require the purchase at probate to be completed before the 
probate decision is issued, purchases at probate are completed based on 
provisional heirs and devisees, which causes uncertainty and increases 
the chance of having to redo the already-lengthy process. This final 
rule instead sequences the purchase at probate process to allow the 
probate to be closed, while the purchase at probate continues, as 
follows:
     The eligible purchaser may request to purchase at any time 
before the completion of the first probate hearing (including at the 
hearing) or within 30 days of the distribution order mailing date, when 
requesting to purchase property newly added to the inventory.
     If the request is still pending at the time the probate 
decision is issued and is not denied in the decision, OHA then includes 
in the probate decision (or reconsideration order if property was 
added) a list of all the purchase at probate requests that have been 
submitted, direction to BIA to obtain an appraisal/valuation of the 
interest, and direction to heirs or devisees on how to consent if they 
wish to do so. The property is distributed and any property subject to 
the purchase at probate request is conveyed with an encumbrance.
     If consent is needed for the purchase, BIA holds off on 
ordering the appraisal/valuation until at least one heir or devisee has 
filed the written notification that the heir or devisee would consider 
selling the interest.
     BIA obtains the appraisal/valuation.
     BIA files a Petition to Complete Purchase at Probate, and 
OHA issues an Order to Submit Bids to all potential bidders that 
includes the fair market value.
     Anyone who may be affected by the determination of the 
fair market value may object to the fair market value stated in the 
Order to Submit Bids by filing a written objection with OHA within 45 
days.
     OHA determines whether the bid is successful based on 
whether the bid was timely, equal to or greater than the fair market 
value, and, when consent is required for the purchase, the applicable 
heir, devisee, or surviving spouse accepts the bid.
     OHA notifies parties of the successful bid.
     The successful bidder pays for the interest purchased and 
the interest transfers.
     Any interested party who is adversely affected by the 
judge's order to approve or disapprove the purchase at probate may 
appeal to the IBIA within 30 days of the order.

B. Changes From Proposed Rule to Final Rule

    The final rule makes the following changes to the proposed rule.

------------------------------------------------------------------------
                                              Change final rule makes to
        Section                 Topic               proposed rule
------------------------------------------------------------------------
Sec.   15.202(b).......  Items included in   Adds a missing word ``in''
                          the probate file.   in the introductory
                                              language of paragraph (b).
                                             Adds new paragraphs (b)(7)
                                              and (b)(8) in response to
                                              comment.
Sec.   15.301(a).......  Funds for funeral   Adds a new paragraph (a)(2)
                          services from       regarding payment of
                          decedent's IIM      funeral expenses by the
                          account.            decedent's Tribe, in
                                              response to comment.
Sec.   30.101..........  Definitions.......  Adds a new definition for
                                              ``co-owner'' in response
                                              to comment.
                                             Deletes definition of
                                              ``extenuating
                                              circumstances'' because
                                              the provision in which
                                              that phrase was used has
                                              been deleted in response
                                              to comment.
                                             Deletes from definition of
                                              ``interested party'' the
                                              phrase ``except for
                                              potential or actual heirs
                                              who may or will inherit
                                              solely as co-owners of an
                                              allotment'' because that
                                              was removed from Sec.
                                              30.114 in response to
                                              comment.
Sec.   30.114..........  Notice to co-       Deletes proposed provision
                          owners.             requiring potential heirs
                                              who may inherit solely as
                                              co-owners to file a
                                              request for notice, in
                                              response to comment.
Sec.   30.180..........  Renunciations.....  Adds new paragraph (b) to
                                              make explicit that
                                              entities may renounce, in
                                              response to comment.
Sec.   30.183..........  Renunciation......  Replaces phrase in
                                              paragraph (b) with newly
                                              defined term ``co-owner,''
                                              the definition for which
                                              was added in response to
                                              comment.
Sec.   30.186..........  Renunciation......  Adds reference to a
                                              ``Tribal resolution'' to
                                              make explicit how a Tribe
                                              may renounce, in response
                                              to comment.
Sec.   30.211..........  Public notice of    Adds a new paragraph (b) to
                          formal probate      provide that a judge may
                          proceeding.         also cause notice to be
                                              published in a local
                                              newspaper, in response to
                                              comment. (Updated
                                              appropriate citations)
                                             Revises proposed paragraph
                                              (e) (final paragraph (f))
                                              to require physical
                                              posting at the agency or,
                                              if posting at the agency
                                              is not possible because
                                              the agency office is
                                              closed or inaccessible,
                                              posting in a conspicuous
                                              place near that agency, in
                                              response to comment.

[[Page 72076]]

 
Sec.   30.214..........  Contents of notice  Adds reference to Federal
                          regarding           law or Secretarially
                          purchase at         approved Tribal probate
                          probate.            codes.
Sec.   30.241..........  Rehearing.........  Adds a clarification that
                                              successive petitions may
                                              not be filed ``in the same
                                              probate case'' in response
                                              to comment.
Sec.   30.243..........  Reopening.........  Adds in paragraph (a) that
                                              the petition for reopening
                                              must be filed with the
                                              judge.
Sec.   30.248..........  Decision on         Clarifies in paragraph
                          reopening.          (a)(2) that the petition
                                              may be summarily dismissed
                                              if it ``raises issues or
                                              objections that were
                                              previously addressed''
                                              rather than requesting the
                                              same relief, for
                                              clarification.
                                             Updates citation in
                                              paragraph (a)(5).
Sec.   30.251..........  Identification of   Clarifies in paragraph
                          additional          (e)(4) that the right of
                          property after      reconsideration must
                          probate decision.   allege an error in the
                                              inventory of additional
                                              property, rather than the
                                              original inventory.
Sec.   30.252..........  Identification of   Clarifies that BIA removes
                          incorrectly         property from the estate
                          included property   inventory in paragraph
                          after probate       (b).
                          decision.
Sec.   30.253..........  Reconsideration of  Adds a new paragraph (f) to
                          distribution        clarify that the judge may
                          order.              vacate the distribution
                                              order and remand to the
                                              BIA.
                                             Clarifies in final
                                              paragraphs (g) and (h) the
                                              ``final order on
                                              reconsideration'' to
                                              distinguish from the
                                              distribution order.
Sec.   30.401..........  Who may purchase    Replaces phrase with the
                          at probate.         newly defined term ``co-
                                              owner,'' the definition
                                              for which was added in
                                              response to comment.
Sec.   30.404..........  Consent in          Adds new paragraphs (b)
                          purchase at         through (d) to clarify how
                          probate.            an heir or devisee may
                                              consent to purchase at
                                              probate, that consent will
                                              not be presumed, and that
                                              an heir or devisee may
                                              withdraw consent any time
                                              before the purchase is
                                              final.
Sec.   30.409..........  Effect of purchase  Adds clarification that the
                          at probate on       decision or distribution
                          distribution.       order will identify the
                                              interest that is subject
                                              to a pending request for
                                              purchase at probate.
Sec.   30.410..........  Continuation of     Corrects a typographical
                          purchase at         error to change ``approval/
                          probate process.    valuation'' to ``appraisal/
                                              valuation.''
Sec.   30.413..........  Potential bidders   Replaces phrase in (b)(5)
                          in purchase at      with the newly defined
                          probate.            term ``co-owner,'' the
                                              definition for which was
                                              added in response to
                                              comment.
Sec.   30.418..........  Payment for         Clarifies the successful
                          purchase at         bidder ``must'' make
                          probate.            payment.
Sec.   30.506..........  Law applicable      Replaces the phrase ``co-
                          when decedent       owners of the parcel'' in
                          dies intestate.     (b)(1) and (2) with the
                                              newly defined term ``co-
                                              owners,'' the definition
                                              for which was added in
                                              response to comment.
------------------------------------------------------------------------

C. Crosswalk of Current Regulation to New Regulation

    The following chart provides a high-level crosswalk of the current 
regulatory provisions as compared to the new and revised provisions 
established by this final rule. Sections not listed in the ``current'' 
column are unaffected by this final rule.
    In 25 CFR part 15:

------------------------------------------------------------------------
  Current Sec.         New Sec.               Summary of changes
------------------------------------------------------------------------
15.202 What items  15.202 What items  Redesignates paragraphs and adds a
 must the agency    must the agency    new paragraph (b) to establish a
 include in the     include in the     more limited universe of
 probate file?      probate file?      documents required to be included
                                       in estates that will be subject
                                       to a summary probate proceeding
                                       (i.e., estates with no land and
                                       $300 or less in funds). Also adds
                                       a new paragraph (a)(16) to
                                       address the need for the probate
                                       file to include valuation reports
                                       in the limited circumstances in
                                       which a special statute applies
                                       that requires the valuation
                                       report.
15.301 May I       15.301 May I       Increases the amount that may be
 receive funds      receive funds      requested and approved for
 from the           from the           distribution from a decedent's
 decedent's IIM     decedent's IIM     IIM account to pay for funeral
 account for        account for        expenses from $1,000 to $5,000.
 funeral            funeral            Also deletes requirement for the
 services?          services?          IIM account to contain at least
                                       $2,500 and clarifies that funds,
                                       if approved, are taken from the
                                       balance of the account as of the
                                       date of death.
N/A                15.404 What        New section.
                    happens if BIA
                    identifies
                    additional
                    property of a
                    decedent after
                    the probate
                    decision is
                    issued?
N/A                15.405 What        New section.
                    happens if BIA
                    identifies that
                    property was
                    incorrectly
                    included in a
                    decedent's
                    inventory?
------------------------------------------------------------------------

    In 43 CFR part 30:

------------------------------------------------------------------------
  Current Sec.         New Sec.               Summary of changes
------------------------------------------------------------------------
30.100 How do I    30.100 How do I    Updates citations (no substantive
 use this part?     use this part?     change).
30.101 What        30.101 What        Deletes definitions of ``BLM'' and
 definitions do I   definitions do I   ``de novo review'' because they
 need to know?      need to know?      are no longer used.
                                      Revises the definitions of ``ADM''
                                       to delete reference to de novo
                                       review, ``decision'' to clarify
                                       that there is a single probate
                                       decision, ``Indian probate
                                       Judge'' to reflect that the
                                       judges exercise delegated
                                       authority, and ``summary probate
                                       proceeding'' to reflect the new
                                       approach to these proceedings.
                                      Adds definitions for ``co-owner,''
                                       ``distribution order,'' ``home
                                       agency,'' ``joint tenancy,''
                                       ``lineal descendant,'' ``order,''
                                       ``Petition to Complete Purchase
                                       at Probate,'' and ``tenants in
                                       common.''

[[Page 72077]]

 
30.114 Will I      30.114 Will I      Deletes provisions in current
 receive notice     receive notice     paragraph (b) regarding
 of the probate     of the probate     requesting a formal probate
 proceeding?        proceeding?        proceeding in lieu of a summary
                                       probate proceeding because, with
                                       the proposed revisions to the
                                       summary probate proceeding
                                       elsewhere in the proposed rule,
                                       this provision is no longer
                                       applicable.
30.123 Will the    30.123 Will the    Adds ``if relevant'' so that a
 judge determine    judge determine    judge is not required to
 matters of         matters of         determine the status of eligible
 status and         status and         heirs or devisees as Indian if
 nationality?       nationality?       their status is not relevant in
                                       the probate case.
30.124 When may a  30.124 When may a  Revises to list specific evidence
 judge make a       judge make a       that will support a presumption
 finding of         finding of         that an heir, devisee, or person
 death?             death?             for whom a probate case has been
                                       opened has died and the date of
                                       death. Also establishes what
                                       evidence will rebut the
                                       presumption.
30.125 May a       30.129 May a       Redesignated to follow other
 judge reopen a     judge reopen a     section on correcting errors in
 probate case to    probate case to    ``Judicial Authority'' subpart.
 correct errors     correct errors     No substantive change.
 and omissions?     and omissions?
N/A                30.125 May a       New section.
                    judge order that
                    a property
                    interest be
                    partitioned as a
                    result of a
                    devise?
30.235 What will   30.235 What will   Adds ``if relevant'' so that a
 the judge's        the judge's        judge's decision need not include
 decision in a      decision in a      the status of eligible heirs or
 formal probate     formal probate     devisees as Indian if their
 proceeding         proceeding         status is not relevant in the
 contain?           contain?           probate case.
N/A                30.250 May a       New section.
                    correction order
                    be issued to
                    correct
                    typographical
                    and other non-
                    substantive
                    errors?
30.126 What        30.251 What        Clarifies what information BIA
 happens if         happens if BIA     must provide to OHA in support of
 property was       identifies         the petition to add the property,
 omitted from the   additional         and provides that the judge will
 inventory of the   property of a      issue a distribution order of the
 estate?            decedent after a   additional property.
                    decision is
                    issued?
30.127 What        30.252 What        Clarifies what information BIA
 happens if         happens if BIA     must provide to OHA in support of
 property was       identifies that    the petition to remove the
 improperly         property was       property, and provides that the
 included in the    incorrectly        judge will issue a distribution
 inventory?         included in a      order that addresses any
                    decedent's         modifications to the distribution
                    inventory?         of the decedent's property
                                       resulting from the correction of
                                       the inventory.
N/A                30.253 What        New section. Adds a process to
                    happens if a       allow interested parties to seek
                    request for        reconsideration of the
                    reconsideration    distribution order.
                    of a
                    distribution
                    order is timely
                    made?
Subpart G--        Subpart M--        Revises this subpart overall to
 Purchase at        Purchase at        streamline the process for
 Probate            Probate            purchasing decedent's interests
                                       at probate using the statutory
                                       authority in the American Indian
                                       Probate Reform Act.
30.160 What may    30.400 What may    Adds a provision regarding
 be purchased at    be purchased at    purchase of minerals-only
 probate?           probate?           interests at probate.
                                      Deletes provision regarding timing
                                       of requesting a purchase at
                                       probate (addressed in proposed
                                       Sec.   30.404).
30.161 Who may     30.401 Who may     No substantive change.
 purchase at        purchase at
 probate?           probate?
30.162 Does        30.402 Does        No change.
 property           property
 purchased at       purchased at
 probate remain     probate remain
 in trust or        in trust or
 restricted         restricted
 status?            status?
30.163 Is consent  30.403 Is consent  Adds that, to purchase any
 required for a     required for a     interest included in an approved
 purchase at        purchase at        consolidation agreement, the
 probate?           probate?           consent of the recipient of the
                                       consolidated interest is
                                       required.
                                      Adds new paragraphs (b) through
                                       (d), establishing procedures for
                                       heirs and devisees to consent to
                                       a purchase at probate, that
                                       consent will not be presumed, and
                                       that consent may be withdrawn.
                                      Adds to the conditions in which a
                                       Tribe does not need consent to
                                       purchase that the interest is not
                                       part of an approved consolidation
                                       agreement.
30.164 What must   30.404 How do I    Changes the deadline for filing a
 I do to purchase   initiate a         purchase request from before
 at probate?        purchase at        issuance of the final probate
                    probate?           decision or order to instead
                   30.405 When may I   before the end of the first
                    initiate a         probate hearing.
                    purchase at
                    probate?
N/A                30.406 May I       New section.
                    withdraw my
                    request to
                    purchase at
                    probate?
N/A                30.407 How will    New section.
                    OHA address
                    requests to
                    purchase at
                    probate?
30.165 Who will    30.408 What will   Revisions to incorporate the
 OHA notify of a    OHA include in     purchase at probate process into
 request to         the probate        the final probate decision or
 purchase at        decision or        reconsideration order, since that
 probate?           reconsideration    final decision and order are
30.166 What will    order when a       provided to the heirs or
 the notice of      purchase at        devisees, BIA, and anyone who has
 the request to     probate is         submitted a request to purchase.
 purchase at        pending?
 probate include?
N/A                30.409 How will a  New section.
                    pending purchase
                    at probate
                    request affect
                    how the
                    decedent's
                    property is
                    distributed?
N/A                30.410 How will    New section.
                    the purchase at
                    probate process
                    continue after
                    the decision or
                    reconsideration
                    order is issued?
30.167 How does    30.411 How will    Adds that BIA will obtain the
 OHA decide         the interests to   appraisal or other fair market
 whether to         be purchased at    valuation and that any appraisal/
 approve a          probate be         valuation must be made on the
 purchase at        valued?            basis of the fair market value as
 probate?          30.416 How does     of the decedent's date of death.
                    OHA decide        Adds that the appraisal/valuation
                    whether a bid is   must state or include a
                    successful?        certification that it is
                                       assessing the fair market value
                                       of the real property interest.
                                      Clarifies that OHA may hold a
                                       hearing and that the applicable
                                       heir, devisee, or surviving
                                       spouse may choose which bid to
                                       accept if multiple bids are
                                       submitted.
30.168 How will    (see 30.419,       Combines information on allocating
 the judge          listed below)      proceeds with information on OHA
 allocate the                          issuing the order approving the
 proceeds from a                       sale.
 sale?

[[Page 72078]]

 
30.169 What may I  30.415 What may I  Expands who may object to a fair
 do if I do not     do if I do not     market value determination to
 agree with the     agree with the     include any party who may be
 appraised market   determination of   affected by the determination.
 value?             fair market       Combines time for filing an
                    value in the       objection (30 days) and filing
                    Order to Submit    supporting documentation (15
                    Bids?              days) into a deadline of 45 days
                                       for both.
                                      Requires objecting party to
                                       provide copies of the objection
                                       and supporting documents to
                                       parties who have an interest in
                                       the purchase of the property.
                                      Provides that the judge may issue
                                       a Modified Order to Submit Bids.
30.170 What may I  30.423 What may I  Replaces process for objecting to
 do if I disagree   do if I disagree   the judge with a process for
 with the judge's   with the judge's   appealing to IBIA.
 determination to   determination to
 approve a          approve or deny
 purchase at        a purchase at
 probate?           probate.
30.171 What        30.412 What will   Clarifies that OHA issues an Order
 happens when the   OHA do when it     to Submit Bids to all potential
 judge grants a     receives BIA's     bidders, and that this occurs
 request to         notification       after the fair market value has
 purchase at        that an            been determined.
 probate?           appraisal/
                    valuation has
                    been completed?
                   30.417 How does
                    the judge notify
                    the parties
                    whether there
                    was a successful
                    bid?
N/A                30.413 Who are     New section.
                    potential
                    bidders?
N/A                30.414 What will   New section.
                    be contained in
                    the Order to
                    Submit Bids?
30.172 When must   30.418 When must   No substantive change.
 the successful     the successful
 bidder pay for     bidder pay for
 the interest       the interest
 purchased?         purchased?
30.173 What        30.419 What        Adds information on allocation of
 happens after      happens after      the proceeds of the sale.
 the successful     the successful
 bidder submits     bidder submits
 payment?           payment?
30.174 What        30.420 What        No substantive change.
 happens if the     happens if the
 successful         successful
 bidder does not    bidder does not
 pay within 30      pay within 30
 days?              days?
30.175 When does   30.421 When does   No substantive change.
 a purchased        a purchased
 interest vest in   interest vest in
 the purchaser?     the purchaser?
N/A                30.422 What will   New section.
                    happen to any
                    lease income
                    received or
                    accrued from
                    purchased land
                    interests before
                    the purchased
                    interest vests
                    in the
                    purchaser?
N/A                30.424 When will   New section.
                    the order
                    approving or
                    denying the
                    purchase at
                    probate become
                    final?
Subpart H--        Subpart H--        See below for specific sections.
 Renunciation of    Renunciation of
 Interest           Interest
30.180 May I give  30.180 May I give  Adds clarification that entities
 up an inherited    up an inherited    may renounce.
 interest in        interest in
 trust or           trust or
 restricted         restricted
 property or        property or
 trust              trust
 personalty?        personalty?
30.181 How do I    30.181 When may I  Splits into two sections. Expands
 renounce an        renounce a         when someone may renounce to
 inherited          devised or         allow renunciation 30 days after
 interest?          inherited          the probate decision is mailed,
                    interest?          before the entry of an order on
                   30.186 How do I     rehearing, or within 30 days
                    renounce an        after mailing of the distribution
                    inherited          for additional property.
                    interest?         Expands the manner in which
                   30.188 What steps   someone may renounce to allow
                    will the judge     acknowledgment before either a
                    take if I          notary or a judge, so that
                    designate a        someone may renounce in person at
                    recipient?         a hearing.
N/A                30.182 Who may     New section. Specifies who may
                    renounce an        renounce on behalf of an heir or
                    inherited          devisee who dies before the
                    interest on        hearing.
                    behalf of an
                    heir or devisee
                    who dies before
                    the hearing?
30.182 Who may     30.183 Who may     Reorganizes these sections to
 receive a          receive a          distinguish based on whether the
 renounced          renounced          decedent had a will or not. No
 interest in        interest in        substantive change.
 trust or           trust or
 restricted land?   restricted land
30.183 Who may      if the land will
 receive a          pass pursuant to
 renounced          a valid will?
 interest of less  30.184 Who will
 than 5 percent     receive a
 in trust or        renounced
 restricted land?   interest in
                    trust or
                    restricted land
                    if the land will
                    pass by
                    intestate
                    succession?
30.184 Who may     30.185 Who may     Deletes paragraph (c) of the
 receive a          receive a          current section, which says the
 renounced          renounced          following, because it is not
 interest in        interest in        directly relevant to the probate
 trust              trust              process: ``The Secretary will
 personalty?        personalty?        directly disburse and distribute
                                       trust personalty transferred by
                                       renunciation to a person or
                                       entity other than those listed in
                                       paragraph (b) of this section.''
30.185 May my      30.189 May my      Adds a provision allowing the
 designated         designated         designated recipient the
 recipient refuse   recipient refuse   opportunity to refuse the
 to accept the      to accept the      interest.
 interest?          interest?
30.186 Are         30.190 Are         No change.
 renunciations      renunciations
 that predate the   that predate the
 American Indian    American Indian
 Probate Reform     Probate Reform
 Act of 2004        Act of 2004
 valid?             valid?
30.187 May I       30.191 May I       Revised when a written
 revoke my          revoke my          renunciation becomes irrevocable
 renunciation?      renunciation?      to when the applicable order
                                       distributing the property becomes
                                       final, rather than when the judge
                                       enters the final order in the
                                       probate proceeding.
30.188 Does a      30.187 What        Reorganizes to split into two
 renounced          happens if I do    sections. No substantive change.
 interest vest in   not designate
 the person who     any eligible
 renounced it?      individual or
                    entity to
                    receive the
                    renounced
                    interest?
                   30.192 Does a
                    renounced
                    interest vest in
                    the person who
                    renounced it?
Subpart I--        Subpart I--        See specific sections below.
 Summary Probate    Summary Probate
 Proceedings        Proceedings

[[Page 72079]]

 
30.200 What is a   30.200 What is a   Deletes that the supervising judge
 summary probate    summary probate    may determine whether the
 proceeding?        proceeding?        proceeding is conducted by a
                                       judge or ADM because this is an
                                       internal procedure.
                                      Changes the qualification for
                                       summary probate proceedings from
                                       funds-only estates with a value
                                       of $5,000 or less to funds-only
                                       estates with a value of $300 or
                                       less.
                                      Specifies what funds are
                                       considered in determining the
                                       value of the estate.
30.201 What does   30.206 What        Changes the notice provided to be
 a notice of a      notice of the      notice of the summary probate
 summary probate    summary probate    decision and right to challenge
 proceeding         decision will      the decision because the proposed
 contain?           the judge or ADM   rule eliminates the option for a
                    provide?           hearing and claims renunciations
                                       from the summary probate
                                       proceeding. Deletes reference to
                                       renunciations because the option
                                       to renounce will now occur after
                                       the summary probate decision is
                                       issued.
30.202 May I file  30.201 May I file  Revises to disallow claims in
 a claim or         a claim in a       summary probate proceedings
 renounce or        summary probate    because the estate value is only
 disclaim an        proceeding?        $300 or less.
 interest in the
 estate in a
 summary probate
 proceeding?
N/A                30.202 What will   New section. Provides that OHA
                    happen when OHA    determines the distribution of
                    receives the       estates under summary probate
                    summary probate    proceedings based on the
                    file?              information included in the
                                       probate file.
N/A                30.203 What will   New section. Clarifies that if the
                    happen if the      funds in the estate are
                    funds in the       insufficient to provide all heirs
                    estate are         or devisees with one cent, then
                    insufficient to    the oldest heir or devisee
                    provide each       receives all the funds.
                    heir or devisee
                    at least one
                    cent?
30.203 May I       30.204 May I       Revises to eliminate the option
 request that a     request that a     for requesting the summary
 formal probate     formal probate     probate be conducted as a formal
 proceeding be      proceeding be      probate proceeding because the
 conducted          conducted          estate value is so small.
 instead of a       instead of a
 summary probate    summary probate
 proceeding?        proceeding?
30.204 What must   30.205 What must   Reorganizes.
 a summary          a summary         Deletes reference to a proposed
 probate decision   probate decision   decision, because the judge
 contain?           contain?           decides the case without first
                                       releasing a proposed decision.
                                      Deletes references to claims.
                                      Adds that determination of
                                       ``Indian'' status is necessary
                                       only if relevant.
                                      Allows renunciation for 30 days
                                       after the mailing date of the
                                       decision (or within 30 days of an
                                       order on review, if applicable).
                                      Adds a statement that a formal
                                       probate proceeding will be
                                       initiated if BIA later identifies
                                       trust or restricted land that
                                       should have been included in the
                                       estate.
30.205 How do I    30.207 How do I    Deletes reference to ``de novo''
 seek review of a   seek review of a   review.
 summary probate    summary probate   Clarifies that BIA may also seek
 proceeding?        proceeding?        review.
30.206 What        30.208 What        Lengthens the time OHA has to
 happens after I    happens after I    notify the agency that prepared
 file a request     file a request     the probate file, all other
 for de novo        for review?        affected agencies, and all
 review?                               interested parties of the request
                                       for review from 10 days to 30
                                       days of receipt of the request
                                       for review.
                                      No longer requires a hearing on
                                       review.
                                      Clarifies that the judge may issue
                                       an order affirming, modifying, or
                                       vacating the summary probate
                                       decision.
                                      Lists who the judge must
                                       distribute the final order to and
                                       what it must include.
                                      Allows appeal to the IBIA.
30.207 What        30.209 What will   Provides that OHA transmits the
 happens if         the judge or ADM   official record back to the
 nobody files for   do with the        agency originating the probate
 de novo review?    official record    and lists what will be included
                    of the summary     in the record.
                    probate case?     Deletes provision requiring OHA to
                                       send copies to other affected
                                       agencies.
                                      (Section specifying that the order
                                       becomes final after 30 days is in
                                       proposed Sec.   30.206(b)).
Subpart J--Formal  Subpart J--Formal  See affected sections below.
 Probate            Probate
 Proceedings        Proceedings
30.210 How will I  30.210 How will I  Reorganizes to group all mailed
 receive personal   receive personal   (personal) notice into one
 notice of the      notice of the      section and all public notice
 formal probate     formal probate     into a separate section.
 proceeding?        proceeding?       Clarifies that the will and
30.211 Will the    30.211 How will     codicils will be mailed with the
 notice be          OHA provide        notice of the proceeding.
 published in a     public notice of   (Section 30.114 lists who
 newspaper?         the formal         receives mailed notice of the
                    probate            hearing).
                    proceeding?       Allows the posted notice that
                                       supplements the mailed notice to
                                       contain information for more than
                                       one hearing and specifies the
                                       minimum information that must be
                                       included for each.
                                      Adds requirement for OHA to post
                                       notice of all hearings on its
                                       website.
                                      Adds that the judge may cause the
                                       notice to be published in a local
                                       newspaper or other publication to
                                       give judge discretion to post
                                       notice in places other than the
                                       OHA website (including in a
                                       newspaper, if appropriate), for
                                       the purpose of increasing the
                                       chances of reaching individuals
                                       or entities with an interest in a
                                       probate case.
                                      Adds a provision for physical
                                       posting at the decedent's home
                                       agency.
                                      Clarifies that a posting in the
                                       vicinity of the designated place
                                       of hearing will occur only if OHA
                                       designates a specific hearing
                                       location and reduces the number
                                       of conspicuous places for posting
                                       from five to one.
                                      Adds that if physical posting at
                                       the agency office is not possible
                                       because the agency office is
                                       closed or inaccessible, then the
                                       notice must be physically posted
                                       at a conspicuous place near that
                                       agency.
30.214 What must   30.214 What must   Adds to paragraph (g) a
 a notice of        a notice of        specification that the notice of
 hearing contain?   hearing contain?   possibilities of purchase and
                                       sale of trust or restricted
                                       property will be ``in accordance
                                       with Federal law or Secretarially
                                       approved Tribal probate codes.''
30.238 May I file  30.238 May I file  Specifies that you must be an
 a petition for     a petition for     interested party to seek a
 rehearing if I     rehearing if I     rehearing and the basis for your
 disagree with      disagree with      request must be to correct a
 the judge's        the judge's        substantive error. Expands on
 decision in a      decision in a      what issues may be raised and
 formal probate     formal probate     what evidence may be relied upon
 hearing?           hearing?           in rehearing.
30.239 Does any    30.239 Does any    No change.
 distribution of    distribution of
 the estate occur   the estate occur
 while a petition   while a petition
 for rehearing is   for rehearing is
 pending?           pending?

[[Page 72080]]

 
30.240 How will    30.240 How will    Clarifies that the judge will
 the judge decide   the judge decide   consider the petition for
 a petition for     a petition for     rehearing as a petition for
 rehearing?         rehearing?         reopening if not timely filed.
                                      Adds provision allowing the judge
                                       to summarily deny the petition
                                       based on certain deficiencies.
30.241 May I       30.241 May I       No substantive change. Moves
 submit another     submit another     information regarding the judge's
 petition for       petition for       jurisdiction to Sec.   30.242.
 rehearing?         rehearing?
30.242 When does   30.242 When does   Includes information on when the
 the judge's        the judge's        jurisdiction of the judge
 order on a         order on a         terminates.
 petition for       petition for
 rehearing become   rehearing become
 final?             final?
30.243 May a       30.243 May a       Deletes the chart and states by
 closed probate     closed probate     whom and the circumstances in
 case be            case be            which a closed probate case may
 reopened?          reopened?          be reopened.
                   30.244 When must   Splits provisions regarding
                    a petition for     deadlines for filing petitions to
                    reopening be       reopening to proposed Sec.
                    filed?             30.244 to simplify the deadline
                   30.245 What legal   to one year after discovery of
                    standard will be   the error.
                    applied to        Clarifies that the 3-year
                    reopen a case?     threshold is important only with
                   30.246 What must    regard to the heightened legal
                    be included in a   standard that is applied to the
                    petition for       petition to reopen after 3 years.
                    reopening?        Expands on what information must
                                       be included in a petition for
                                       reopening to justify reopening.
N/A                20.247 What is     New section. Clarifies what issues
                    not appropriate    or objections a petition may not
                    for a petition     raise and what evidence a
                    for reopening?     petition may not rely upon for a
                                       reopening, to encourage parties
                                       to address issues and bring
                                       evidence during the initial
                                       probate proceeding.
30.244 How will    30.248 How will    Adds provision allowing the judge
 the judge decide   the judge decide   to summarily deny the petition
 my petition for    my petition for    based on certain deficiencies.
 reopening?         reopening?
30.245 What        30.249 What        Combines two sections. No
 happens if the     happens when the   substantive change.
 judge reopens      judge issues an
 the case?          order on
30.246 When will    reopening?
 the decision on
 reopening become
 final?
Subpart K--        Subpart N--        See affected sections below.
 Miscellaneous      Miscellaneous
30.250 When does   30.500 When does   Redesignated. No change.
 the anti-lapse     the anti-lapse
 provision apply?   provision apply?
N/A                30.501 When is     New section. Establishes that
                    joint tenancy      joint tenancy will be presumed
                    presumed?          where a testator devises the same
                                       interests to more than one person
                                       without specifying otherwise.
N/A                30.502 How does a  New section. Clarifies that the
                    judge resolve      judge will give priority to the
                    conflicts          presumption of joint tenancy,
                    between the anti-  such that the share of the
                    lapse provision    deceased devisee will go to the
                    and presumption    surviving devisees (rather than
                    of joint           to the deceased devisee's
                    tenancy?           descendants).
30.251 What        30.503 What        Redesignated. No change.
 happens if an      happens if an
 heir or devisee    heir or devisee
 participates in    participates in
 the killing of     the killing of
 the decedent?      the decedent?
30.252 May a       30.504 May a       Redesignated. No change.
 judge allow fees   judge allow fees
 for attorneys      for attorneys
 representing       representing
 interested         interested
 parties?           parties?
30.253 How must    30.505 How must    Redesignated. No change.
 minors or other    minors or other
 legal              legal
 incompetents be    incompetents be
 represented?       represented?
30.254 What        30.506 When a      Deletes chart. Reorganizes based
 happens when a     decedent died      on whether the decedent died
 person dies        intestate          before or after the date of
 without a valid    without heirs,     AIPRA's enactment. Adds detail as
 will and has no    what law applies   to how interests will be
 heirs?             to trust or        distributed under the statute in
                    restricted         each case, rather than just
                    property?          citing the statutory provisions.
N/A                30.507 How will    New section. Specifies how trust
                    trust personalty   personalty is distributed in the
                    be distributed     circumstance in which AIPRA
                    if a decedent      applies but fails to state how
                    died intestate     trust personalty is distributed:
                    on or after June   If the decedent has no surviving
                    20, 2006, and      spouse or eligible heirs or trust
                    the Act does not   or restricted property over which
                    specify how the    one and only one Tribe has
                    trust personalty   jurisdiction.
                    should be
                    distributed?
------------------------------------------------------------------------

V. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This rule affects only individuals' estates and does not affect small 
entities.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rulemaking under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more because this rule addresses only the transfer through probate 
of individuals' property held in trust or restricted status.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions because this rule affects only probates 
of individuals' trust or restricted property.
    (c) Does not have significant adverse effects on competition, 
employment,

[[Page 72081]]

investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises because this rule 
affects only affects only probates of individuals' trust or restricted 
property.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630 because this 
rulemaking, if adopted, does not affect individual property rights 
protected by the Fifth Amendment or involve a compensable ``taking.'' A 
takings implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement because the rule 
affects only the probate of individuals' trust or restricted property. 
A federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule: (a) Meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) Meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has substantial 
direct effects on federally recognized Indian Tribes because the rule 
affects the probate of trust or restricted property held by 
individuals, many or most of whom are likely Tribal members. The 
Department therefore conducted Tribal consultation on this rule and has 
included responses to Tribal input in Section III. Proposed Rule 
Comments and Responses to Comments.

I. Paperwork Reduction Act

    This rule does not contain any new collection of information that 
requires approval from the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. OMB 
has previously approved the information collection requirements 
associated with compiling the probate file for an estate and assigned 
the information collection requirements OMB Control Number 1076-0169 
(expires 11/30/2021). We estimate the annual burden associated with 
this information collection to be 617,486 hours per year. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because these are ``regulations . . . whose environmental 
effects are too broad, speculative, or conjectural to lend themselves 
to meaningful analysis and will later be subject to the NEPA process, 
either collectively or case-by-case.'' 43 CFR 46.210(i). We have also 
determined that the rulemaking does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects

25 CFR Part 15

    Estates, Indians--law.

43 CFR Part 30

    Administrative practice and procedure, Claims, Estates, Indians, 
Lawyers.

    For the reasons given in the preamble, the Department of the 
Interior amends part 15 of title 25 and part 30 of title 43 of the Code 
of Federal Regulations as follows:

Title 25--Indians

Chapter I--Bureau of Indian Affairs, Department of the Interior

PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE 
NATION AND THE FIVE CIVILIZED TRIBES

0
1. The authority citation for part 15 continues to read as follows:

    Authority:  5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et 
seq.; 44 U.S.C. 3101 et seq.

Subpart C--Preparing the Probate File

0
2. Revise Sec.  15.202 to read as follows:


Sec.  15.202   What items must the agency include in the probate file?

    (a) We will include the items listed in this section in the probate 
file, except as specified in paragraph (b) of this section.
    (1) The evidence of death of the decedent as provided under Sec.  
15.104.
    (2) A completed ``Data for Heirship Findings and Family History 
Form'' or successor form, certified by BIA, with the enrollment or 
other identifying number shown for each potential heir or devisee.
    (3) Information provided by potential heirs, devisees, or the 
Tribes on:
    (i) Whether the heirs and devisees meet the definition of 
``Indian'' for probate purposes, including enrollment or eligibility 
for enrollment in a Tribe; or
    (ii) Whether the potential heirs or devisees are within two degrees 
of consanguinity of an ``Indian.''
    (4) If an individual qualifies as an Indian only because of 
ownership of a trust or restricted interest in land, the date on which 
the individual became the owner of the trust or restricted interest.
    (5) A certified inventory of trust or restricted land, including:
    (i) Accurate and adequate descriptions of all land; and
    (ii) Identification of any interests that represent less than 5 
percent of the undivided interests in a parcel.
    (6) A statement showing the balance and the source of funds in the 
decedent's IIM account on the date of death.
    (7) A statement showing all receipts and sources of income to and 
disbursements, if any, from the decedent's IIM account after the date 
of death.

[[Page 72082]]

    (8) Originals or copies of all wills, codicils, and revocations 
that have been provided to us.
    (9) A copy of any statement or document concerning any wills, 
codicils, or revocations the BIA returned to the testator.
    (10) Any statement renouncing an interest in the estate that has 
been submitted to us, and the information necessary to identify any 
person receiving a renounced interest.
    (11) Claims of creditors that have been submitted to us under 
Sec. Sec.  15.302 through 15.305, including documentation required by 
Sec.  15.305.
    (12) Documentation of any payments made on requests filed under the 
provisions of Sec.  15.301.
    (13) All the documents acquired under Sec.  15.105.
    (14) The record of each Tribal or individual request to purchase a 
trust or restricted land interest at probate.
    (15) The record of any individual request for a consolidation 
agreement, including a description, such as an Individual/Tribal 
Interest Report, of any lands not part of the decedent's estate that 
are proposed for inclusion in the consolidation agreement.
    (16) Valuation reports for those interests to which the special 
circumstances listed in 43 CFR 30.264 apply.
    (b) If the estate includes only cash and the total value of the 
estate does not exceed $300 on the date of death, including funds 
deposited and accruing on or before the date of death, then we will 
include only the following the probate file.
    (1) The evidence of death of the decedent as provided under Sec.  
15.104.
    (2) A completed ``Data for Heirship Findings and Family History 
Form'' or successor form, certified by BIA as an accurate summary of 
the information available to BIA that is relevant to the probate of the 
estate (this form should be completed with information provided by 
potential heirs, devisees, or Tribes to the greatest extent possible, 
but BIA is not required to obtain documentation in addition to that 
provided by those entities).
    (3) A statement showing the balance and the source of funds in the 
decedent's IIM account on the date of death.
    (4) Certification that the decedent's estate does not contain any 
interests in trust or restricted land.
    (5) Originals or copies of all wills, codicils, and revocations 
that have been provided to BIA.
    (6) A copy of any statement or document concerning any wills, 
codicils, or revocations the BIA returned to the testator.
    (7) Documentation of any payments made on requests filed under the 
provisions of Sec.  15.301.
    (8) All the documents acquired under Sec.  15.105.

Subpart D--Obtaining Emergency Assistance and Filing Claims

0
3. In Sec.  15.301, revise the section heading and paragraphs (a) and 
(c) to read as follows:


Sec.  15.301   May funds for funeral services be paid from the 
decedent's IIM account?

    (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.
* * * * *
    (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.
* * * * *

Subpart E--Probate Processing and Distributions

0
4. Add Sec. Sec.  15.404 and 15.405 to read as follows:


Sec.  15.404   What happens if BIA identifies additional property of a 
decedent after the probate decision is issued?

    If, after OHA issues the probate decision, BIA identifies 
additional trust or restricted property of a decedent that it had not 
already identified at the time of the decision, then BIA will submit a 
petition to OHA for an order directing distribution of the additional 
property.
    (a) The petition must identify the additional property and the 
source of that property (e.g., inheritance or approval of a deed) and 
must include the following:
    (1) A certified inventory describing the additional trust or 
restricted land, if applicable, or, if the additional property is trust 
personalty, documents verifying the balance and source of the 
additional trust personalty, and a statement that the inventory lists 
only the property to be added;
    (2) A copy of the decision, or modification or distribution order 
and corresponding inventory issued in the probate case from which the 
property was inherited by the decedent, if applicable;
    (3) A statement identifying each newly added share of any allotment 
that increases the decedent's total share of the ownership interest of 
the allotment to 5 percent or more;
    (4) A copy of BIA's notification to the Tribes with jurisdiction 
over the interests of the list of the additional interests that 
represent less than 5 percent of the entire undivided ownership of each 
parcel (after being added to the decedent's estate) under Sec.  
15.401(b); and
    (5) A certification that all interested parties have been 
associated to the case and their names and addresses are current.
    (b) BIA may submit the petition at any time after issuance of the 
decision.
    (c) BIA must send a copy of the petition and all supporting 
documentation to each interested party at the time of filing and 
include certification of service.


Sec.  15.405   What happens if BIA identifies that property was 
incorrectly included in a decedent's inventory?

    If, after issuance of a decision, BIA identifies certain trust or 
restricted property or an interest therein that was incorrectly 
included in a decedent's inventory, then BIA will submit a petition to 
OHA for an order notifying all heirs or devisees of the correction and 
addressing any changes in distribution of property resulting from the 
correction.
    (a) The petition must identify the property that it removed from 
the estate and explain why the property should not have been included, 
and must include the following:
    (1) A newly issued certified inventory describing the trust or 
restricted land remaining in decedent's estate, if applicable;
    (2) A copy of the decision, or modification or distribution order 
and corresponding inventory issued in the probate case from which BIA 
discovered that the property was incorrectly included in the decedent's 
estate, if applicable;
    (3) A statement identifying each property in the decedent's estate 
that decreased to a total share of the

[[Page 72083]]

ownership of the allotment to less than 5 percent as a result of the 
removal of property from the estate; and
    (4) A certification that all interested parties have been 
associated to the case and their names and addresses are current.
    (b) BIA may submit the petition at any time after issuance of the 
decision.
    (c) BIA must send a copy of the petition and all supporting 
documentation to each interested party at the time of filing and 
include certification of service.

Title 43--Public Lands: Interior

PART 30--INDIAN PROBATE HEARINGS PROCEDURES

0
5. The authority citation for part 30 continues to read as follows:

    Authority:  5 U.S.C. 301, 503; 25 U.S.C. 9, 372-74, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457.

Subpart A--Scope of Part; Definitions

0
6. In Sec.  30.100, revise paragraphs (a)(5) and (7) through (9) and 
(c)(2) and (3) to read as follows:


Sec.  30.100   How do I use this part?

    (a) * * *

------------------------------------------------------------------------
       For provisions relating to . . .              Consult . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(5) Formal probate proceedings before an       Sec.  Sec.   30.210
 administrative law judge or Indian probate     through 30.253.
 judge.
 
                              * * * * * * *
(7) Purchases at probate.....................  Sec.  Sec.   30.400
                                                through 30.424.
(8) Renunciation of interests................  Sec.  Sec.   30.180
                                                through 30.192.
(9) Summary probate proceedings..............  Sec.  Sec.   30.200
                                                through 30.209.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (c) * * *
    (2) Sec. Sec.  30.400 through 30.424 (purchases at probate);
    (3) Sec. Sec.  30.183 through 30.188, except for Sec. Sec.  
30.186(a), (b)(2), and (d) and 30.187;
* * * * *

0
7. Amend Sec.  30.101 by:
0
a. Revising the definition of ``Attorney decision maker (ADM)'';
0
b. Removing the definition of ``BLM'';
0
c. Adding in alphabetical order a definition for ``Co-owner''
0
d. Removing the definition of ``Decision or order (or decision and 
order)'';
0
e. Adding in alphabetical order a definition for ``Decision'';
0
f. Removing the definition of ``De novo review'';
0
g. Adding in alphabetical order definitions for ``Distribution order'' 
and ``Home agency'';
0
h. Revising the definition of ``Indian probate judge (IPJ)'';
0
i. Adding in alphabetical order definitions for ``Joint tenancy'', 
``Lineal descendant'', ``Order'', and ``Petition to Complete Purchase 
at Probate'';
0
j. Revising the definition of ``Summary probate proceeding''; and
0
k. Adding in alphabetical order a definition for ``Tenants in common''.
    The revisions and additions read as follows:


Sec.  30.101   What definitions do I need to know?

* * * * *
    Attorney decision maker (ADM) means an attorney with OHA who 
conducts summary probate proceedings.
* * * * *
    Co-owner means any person who owns an undivided trust or restricted 
interest in the same parcel in which the decedent owns an interest.
* * * * *
    Decision means a written document issued by a judge in a formal 
probate proceeding or by a judge or ADM in a summary probate proceeding 
making determinations as to heirs, wills, devisees, and the claims of 
creditors, and ordering distribution of trust or restricted land or 
trust personalty.
* * * * *
    Distribution order means the OHA order distributing additional 
property that has been added to an estate under Sec.  30.251.
* * * * *
    Home agency means the agency that serves the Tribe in which the 
decedent is a member or where the decedent's IIM account originated.
* * * * *
    Indian probate judge (IPJ) means an attorney with OHA, to whom the 
Secretary has delegated the authority to hear and decide Indian probate 
cases, pursuant to 25 U.S.C. 372-2.
* * * * *
    Joint tenancy means ownership by two or more persons of the same 
property, where the individuals, who are called joint tenants, share 
equal, undivided ownership of the property and have a right of 
survivorship such that upon the death of a joint tenant, the property 
descends to the other joint tenants by operation of law.
* * * * *
    Lineal descendent means a blood relative of a person in that 
person's direct line of descent.
* * * * *
    Order means any written direction or determination, other than a 
decision, issued by a judge in a probate case, including a distribution 
order, an order on rehearing, an order on reopening, or a 
reconsideration order.
* * * * *
    Petition to Complete Purchase at Probate means a petition BIA files 
with an appraisal or valuation to request that OHA complete the 
purchase at probate process.
    * * * * *
    Summary probate proceeding means the consideration of a probate 
file without a hearing. A summary probate proceeding may be conducted 
if the estate involves only an IIM account that did not exceed $300 in 
value on the date of the death of the decedent.
    * * * * *
    Tenants in common means two or more people who share ownership 
rights in a property, but whose ownership rights are divisible from 
each other and, when a tenant in common dies, the property descends to 
that tenant's heirs or devisees rather than to the other tenant or 
tenants.
* * * * *

Subpart B--Commencement of Probate Proceedings

0
8. Revise Sec.  30.114 to read as follows:

[[Page 72084]]

Sec.  30.114   Will I receive notice of the probate proceeding?

    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

Subpart C--Judicial Authority and Duties

0
9. In Sec.  30.123, revise paragraph (a)(1) to read as follows:


Sec.  30.123   Will the judge determine matters of status and 
nationality?

    (a) * * *
    (1) If relevant, the status of eligible heirs or devisees as 
Indians;
* * * * *

0
10. Revise Sec.  30.124 to read as follows:


Sec.  30.124   When may a judge presume the death of an heir, devisee, 
or person for whom a probate case has been opened?

    (a) When a person cannot be proven dead but evidence of death is 
needed, a judge may presume that an heir, devisee, or person for whom a 
probate case has been opened has died at a certain time if any of the 
following evidence is submitted:
    (1) A certified copy of an official report or finding by an agency 
or department of the United States, State, or Tribe that a missing 
person is dead or presumed to be dead. The judge will use the date of 
death found by the agency or department, if such a finding was made. If 
no such finding was made, unless other evidence is submitted showing an 
actual date of death, the judge will use the date on which the person 
was reported missing as the date of death.
    (2) A certified copy of an order from a court of competent 
jurisdiction that a missing person is dead or presumed to be dead. The 
judge will use the date of death found by the court, if such a finding 
was made. If no such finding was made, unless other evidence is 
submitted showing an actual date of death, the judge will use the date 
on which the person was reported missing as the date of death.
    (3) Signed affidavits or sworn testimony by those in a position to 
know that facts and other records show that the person has been absent 
from his or her residence for no apparent reason, or has no 
identifiable place of residence and cannot be located, and has not been 
heard from for at least 6 years. If there is no evidence available that 
the person continued to live after the date of disappearance or the 
date of last contact if the person has no identifiable place of 
residence, the judge will use the date the person disappeared or the 
date of last contact as the date of death.
    (4) When a person has been missing for less than 6 years but may be 
presumed dead due to an identified incident, such as drowning, fire, or 
accident, signed affidavits or sworn testimony from individuals who 
know the circumstances surrounding the occurrence leading to the 
person's disappearance. The best evidence is statements from 
individuals who witnessed the occurrence or saw the missing person at 
the scene of the occurrence shortly before it happened. If there is no 
evidence available that the person continued to live after the date of 
the identified incident, the judge will use the date of the identified 
incident as the date of death.
    (5) When a person cannot be located by BIA or known surviving 
family members and was born at least 100 years before the submission of 
a probate case to OHA, certification from BIA or signed affidavits or 
sworn testimony by those in a position to know the approximate date of 
birth. If there is no evidence available that the person continued to 
live after reaching the age of 100, the judge will use the date that is 
100 years after the date of birth as the date of death.
    (b) A presumption of death made based on paragraph (a) of this 
section can be rebutted by evidence that establishes that the person is 
still alive or explains the individual's absence in a manner consistent 
with continued life rather than death.


Sec.  30.125   [Redesignated as Sec.  30.129]

0
11. Redesignate Sec.  30.125 as Sec.  30.129.

0
12. Add a new Sec.  30.125 to read as follows:


Sec.  30.125   May a judge order that a property interest be 
partitioned as a result of a devise?

    (a) A judge may order a property interest to be partitioned if:
    (1) A will attempts to divide an allotment into two or more 
distinct portions and devises at least one of those portions;
    (2) The decedent was the sole owner of the allotment;
    (3) The allotment is held entirely in trust or restricted status; 
and
    (4) The devise describes the portions of the allotment in a manner 
that allows the judge to readily ascertain which portion of the 
allotment descends to each intended devisee.
    (b) If the requirements of paragraph (a) of this section are not 
met, the judge may find that a devise of a portion of an undivided 
allotment fails.


Sec. Sec.  30.126 and 30.127   [Removed and Reserved]

0
13. Remove and reserve Sec. Sec.  30.126 and 30.127.

Subpart G [Removed and Reserved]

0
14. Remove and reserve subpart G, consisting of Sec. Sec.  30.160 
through 30.175.

0
15. Revise subpart H to read as follows:
Subpart H--Renunciation of Interest
Sec.
30.180 May I give up an inherited interest in trust or restricted 
property or trust personalty?
30.181 When may I renounce a devised or inherited interest?
30.182 Who may renounce an inherited interest on behalf of an heir 
or devisee who dies before the hearing?
30.183 Who may receive a renounced interest in trust or restricted 
land if the land will descend pursuant to a valid will?
30.184 Who may receive a renounced interest in trust or restricted 
land if the land will descend by intestate succession?
30.185 Who may receive a renounced interest in trust personalty?
30.186 How do I renounce an inherited interest?
30.187 What happens if I do not designate any eligible individual or 
entity to receive the renounced interest?
30.188 What steps will the judge take if I designate a recipient?
30.189 May my designated recipient refuse to accept the interest?
30.190 Are renunciations that predate the American Indian Probate 
Reform Act of 2004 valid?
30.191 May I revoke my renunciation?
30.192 Does a renounced interest vest in the person who renounced 
it?

Subpart H--Renunciation of Interest


Sec.  30.180   May I give up an inherited interest in trust or 
restricted property or trust personalty?

    You may renounce an inherited or devised interest in trust or 
restricted property, including a life estate, or in trust personalty 
if:
    (a) You are 18 years or older and not under a legal disability; or
    (b) You are an entity.


Sec.  30.181   When may I renounce a devised or inherited interest?

    (a) If the judge has not yet issued a decision, you may renounce a 
devised or inherited interest at any time before the issuance of the 
decision.
    (b) If the judge has issued a decision, you may renounce a devised 
or

[[Page 72085]]

inherited interest in any property distributed by the decision:
    (1) Within 30 days from the mailing date of the decision; or
    (2) Within 30 days of the order on review, in a summary probate 
proceeding in which a request for review has been filed; or
    (3) Before the entry of an order on rehearing, in a formal probate 
proceeding in which a petition for rehearing is pending.
    (c) You may renounce a devised or inherited interest that is added 
to the decedent's estate after the decision is issued pursuant to Sec.  
30.251 within 30 days of mailing the distribution order.
    (d) Once the order on rehearing is issued, you may not renounce a 
devised or inherited interest that was distributed by the decision.


Sec.  30.182   Who may renounce an inherited interest on behalf of an 
heir or devisee who dies before the hearing?

    If an individual heir or devisee dies before the hearing, a 
renunciation may be made on his or her behalf by any of the following, 
if the judge makes a determination that the renunciation is in the best 
interest of the parties:
    (a) An individual appointed by a probate court to act on behalf of 
his or her private (i.e., non-Federal-trust) estate, including but not 
limited to a personal representative, administrator, or executor; or
    (b) Someone appointed by the judge with the express approval of all 
the heirs or devisees of the deceased heir or devisee.


Sec.  30.183   Who may receive a renounced interest in trust or 
restricted land if the land will descend pursuant to a valid will?

    A devisee may renounce an interest in trust or restricted land in 
favor of any one or more of the following:
    (a) A lineal descendant of the testator;
    (b) A co-owner;
    (c) The Tribe with jurisdiction over the interest; or
    (d) Any Indian.


Sec.  30.184   Who may receive a renounced interest in trust or 
restricted land if the land will descend by intestate succession?

    (a) If the interest in trust or restricted land represents 5 
percent or more of the entire undivided ownership of the parcel, you 
may renounce that interest in favor of one or more of the following:
    (1) Eligible heirs of the decedent; or
    (2) The Tribe with jurisdiction over the interest.
    (b) If the interest in the trust or restricted land represents less 
than 5 percent of the entire undivided ownership of the parcel, you may 
renounce that interest in favor of only one person or entity listed in 
paragraph (a) of this section, or to one Indian person related to you 
by blood.


Sec.  30.185   Who may receive a renounced interest in trust 
personalty?

    You may renounce an interest in trust personalty in favor of any 
person or entity.


Sec.  30.186   How do I renounce an inherited interest?

    To renounce an interest under Sec.  30.180, you must file with the 
judge a written declaration or Tribal resolution specifying the 
interest to be renounced. The declaration must be signed by you and 
acknowledged before a notary or judge. The Tribal resolution must be 
approved by appropriate Tribal authorities.
    (a) In your declaration, you may retain a life estate in a 
specified interest in trust or restricted land and renounce the 
remainder interest, or you may renounce the complete interest.
    (b) If you renounce an interest in trust or restricted land, you 
may either:
    (1) Designate an eligible person or entity meeting the requirements 
of Sec.  30.182 or Sec.  30.183 as the recipient; or
    (2) Renounce without making a designation.
    (c) If a distribution order to add property to the decedent's 
estate is issued, you may renounce an inherited interest in the 
property to be added by notifying the judge in writing of your intent 
to renounce the interest within 30 days of the mailing date of the 
distribution order.


Sec.  30.187   What happens if I do not designate any eligible 
individual or entity to receive the renounced interest?

    If you do not designate any individual or entity to receive the 
renounced interest, or if you designate an individual or entity who is 
not eligible to receive the renounced interest, the interest will 
descend to the decedent's heirs or devisees as if you predeceased the 
decedent.


Sec.  30.188   What steps will the judge take if I designate a 
recipient?

    If you choose to renounce your interests in favor of a designated 
recipient, the judge will determine whether the designated recipient is 
eligible to receive the interest. If the designated recipient is 
eligible, the judge must notify the designated recipient of the 
renunciation.


Sec.  30.189   May my designated recipient refuse to accept the 
interest?

    Yes. Your designated recipient may refuse to accept the interest, 
in which case the renounced interest will descend to the devisees or 
heirs of the decedent as if you had predeceased the decedent. When the 
judge notifies the designated recipient of the renunciation, the judge 
will specify a deadline for the recipient to file a written refusal to 
accept the interest. If no written refusal is received before the 
deadline, the interest will descend to the designated recipient.


Sec.  30.190   Are renunciations that predate the American Indian 
Probate Reform Act of 2004 valid?

    Any renunciation filed and included as part of a probate decision 
or order issued before October 27, 2004, the effective date of the 
American Indian Probate Reform Act of 2004, remains valid.


Sec.  30.191   May I revoke my renunciation?

    A written renunciation is irrevocable when the applicable order 
distributing the renounced property becomes final.


Sec.  30.192   Does a renounced interest vest in the person who 
renounced it?

    No. An interest in trust or restricted property renounced under 
this subpart is not considered to have vested in the renouncing heir or 
devisee, and the renunciation is not considered a transfer by gift of 
the property renounced.

0
16. Revise subpart I to read as follows:
Subpart I--Summary Probate Proceedings
Sec.
30.200 What is a summary probate proceeding?
30.201 May I file a claim in a summary probate proceeding?
30.202 What will happen when OHA receives the summary probate file?
30.203 What will happen if the funds in the estate are insufficient 
to provide each heir or devisee at least one cent?
30.204 May I request that a formal probate proceeding be conducted 
instead of a summary probate proceeding?
30.205 What must a summary probate decision contain?
30.206 What notice of the summary probate decision will the judge or 
ADM provide?
30.207 How do I seek review of a summary probate proceeding?
30.208 What happens after I file a request for review?
30.209 What will the judge or ADM do with the official record of the 
summary probate case?

Subpart I--Summary Probate Proceedings


Sec.  30.200   What is a summary probate proceeding?

    (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

[[Page 72086]]

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.


Sec.  30.201   May I file a claim in a summary probate proceeding?

    No. Claims may not be filed in summary probate proceedings.


Sec.  30.202   What will happen when OHA receives the summary probate 
file?

    When OHA receives a summary probate file from BIA under 25 CFR 
15.202(b), OHA will determine the distribution of the estate based on 
the information included in the probate file and issue a summary 
probate decision directing distribution of the estate.


Sec.  30.203   What will happen if the funds in the estate are 
insufficient to provide each heir or devisee at least one cent?

    If the funds in the estate are insufficient to provide each of the 
heirs or devisees at least one cent, all of the funds will be paid to 
the oldest heir or devisee, whichever is applicable.


Sec.  30.204   May I request that a formal probate proceeding be 
conducted instead of a summary probate proceeding?

    No. Formal probate proceedings are available only for estates that 
contain trust or restricted land or contain trust personalty in an 
amount greater than $300.


Sec.  30.205   What must a summary probate decision contain?

    The written decision in a summary probate proceeding must be in the 
form of findings of fact and conclusions of law, with an order for 
distribution. Each decision must include the following:
    (a) The name, birth date, and relationship to the decedent of each 
heir or devisee;
    (b) A statement as to whether the heir or devisee is eligible to 
hold property in trust status and, if relevant, a statement of whether 
the heir or devisee is ``Indian'' for purposes of the Act;
    (c) If the case involves a will, a statement approving or 
disapproving the will, interpreting provisions of an approved will as 
necessary, and describing the share each devisee is to receive under an 
approved will;
    (d) In intestate cases, citation to the law of descent and 
distribution under which the summary probate decision is made, and 
description of the share each heir is to receive;
    (e) A statement advising all interested parties, other than 
potential claimants, that they have a right to seek review under Sec.  
30.207 and that, if they fail to do so, the summary probate decision 
will become final 30 days after it is mailed;
    (f) Notice to the heirs or devisees that each may renounce his or 
her right to inherit the funds in favor of one or more individuals or 
entities. The heir or devisee will be ordered to submit the 
renunciation within 30 days of the mailing date of the decision or 
within 30 days of an order on review if a request for review is filed 
by any party;
    (g) A statement that the findings in a summary probate decision may 
not be used to determine the decedent's heirs or devisees for 
distribution of any trust or restricted land that may be added to the 
decedent's estate at a later time. If BIA identifies trust or 
restricted land in the decedent's estate after the completion of the 
summary probate process, BIA should file a petition for reopening and 
include all documents required for a formal probate proceeding pursuant 
to 25 CFR 15.202(a); and
    (h) The signature of the judge or ADM and date of the probate 
decision.


Sec.  30.206   What notice of the summary probate decision will the 
judge or ADM provide?

    When the judge or ADM issues a decision in a summary probate 
proceeding, the judge or ADM 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.
    (a) The notice must include a statement that interested parties who 
are adversely affected have a right to file a request for review with 
the judge or ADM within 30 days of the mailing date of the decision.
    (b) The decision will become final at the end of the 30-day period, 
unless a timely request is filed.


Sec.  30.207   How do I seek review of a summary probate proceeding?

    (a) If you are adversely affected by the written decision in a 
summary probate proceeding, you may seek review of the summary probate 
decision. To do this, you must file a request with the OHA office that 
issued the summary probate decision within 30 days after the date the 
summary probate decision was mailed. BIA may also seek review within 
the same deadline.
    (b) The request for review must be in writing and signed, and must 
contain the following information:
    (1) The name of the decedent;
    (2) A description of your relationship to the decedent;
    (3) An explanation of what errors you allege were made in the 
summary probate decision; and
    (4) An explanation of how you are adversely affected by the 
decision.


Sec.  30.208   What happens after I file a request for review?

    (a) Within 30 days of receiving a request for review, OHA will 
notify the agency that prepared the probate file, all other affected 
agencies, and all interested parties of the request.
    (b) A judge will review the merits of the case, consider any 
allegations of errors in the summary probate decision, conduct a 
hearing if necessary or appropriate to address the issues raised in the 
request, and issue an order affirming, modifying, or vacating the 
summary probate decision.
    (c) The judge must distribute the final order on the request to 
review to each affected agency and to each interested party. The order 
must include a notice stating that interested parties who are adversely 
affected, or BIA, have a right to appeal the final order to the Board 
within 30 days of the date on which the final order was mailed, and 
giving the Board's address.


Sec.  30.209   What will the judge or ADM do with the official record 
of the summary probate case?

    The judge or ADM will transfer the official record of the summary 
probate case to the agency originating the probate, by sending all 
original hard copies, and transmitting all digital files, that are 
designated by OHA as part of the official record, including:
    (a) The decision, order, and the notices thereof;
    (b) A copy of the notice of hearing on review with proof of 
mailing, if applicable;
    (c) The record of the evidence received at the hearing on review, 
if a hearing was held, including any transcript made of the testimony;
    (d) Any wills, codicils and revocations;
    (e) Any pleadings and briefs filed;
    (f) Interlocutory orders;
    (g) Copies of all proposed or accepted settlement agreements, 
consolidation agreements, and renunciations and acceptances of 
renunciations; and
    (h) Any other documents deemed material by the judge.

Subpart J--Formal Probate Proceedings

0
17. Revise Sec. Sec.  30.210 and 30.211 to read as follows:

[[Page 72087]]

Sec.  30.210   How will I receive personal notice of the formal probate 
proceeding?

    (a) You will receive personal notice of the formal probate 
proceeding hearing described in Sec.  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.


Sec.  30.211   How will OHA provide public notice of the formal probate 
proceeding?

    (a) In addition to the mailed notice in Sec.  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/Ph.D.
    (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 (e) 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 (d)(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.

0
18. In Sec.  30.214, revise the introductory text and paragraph (g) to 
read as follows:


Sec.  30.214   What must a notice of hearing contain?

    The notice of hearing under Sec.  30.114 must:
* * * * *
    (g) In estates for decedents whose date of death is on or after 
June 20, 2006, include notice of the possibilities of purchase and sale 
of trust or restricted property in accordance with Federal law or 
Secretarially approved Tribal probate codes by heirs, devisees, co-
owners, a Tribe or the Secretary; and
* * * * *

0
19. In Sec.  30.235, revise paragraph (a)(2) to read as follows:


Sec.  30.235   What will the judge's decision in a formal probate 
proceeding contain?

* * * * *
    (a) * * *
    (2) If relevant, state whether the heir or devisee is Indian or 
non-Indian;
* * * * *

0
20. Revise Sec. Sec.  30.238 through 30.246 to read as follows:

* * * * *
Sec.
30.238 May I file a petition for rehearing if I disagree with the 
judge's decision in the formal probate hearing?
30.239 Does any distribution of the estate occur while a petition 
for rehearing is pending?
30.240 How will the judge decide a petition for rehearing?
30.241 May I submit another petition for rehearing?
30.242 When does the judge's order on a petition for rehearing 
become final?
30.243 May a closed probate case be reopened?
30.244 When must a petition for reopening be filed?
30.245 What legal standard will be applied to reopen a case?
30.246 What must be included in a petition for reopening?
* * * * *


Sec.  30.238   May I file a petition for rehearing if I disagree with 
the judge's decision in the formal probate hearing?

    (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 Sec.  
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.


Sec.  30.239   Does any distribution of the estate occur while a 
petition for rehearing is pending?

    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.


Sec.  30.240   How will the judge decide a petition for rehearing?

    (a) The judge may consider a petition as a petition for reopening 
if the petition for rehearing is not timely filed.
    (b) The judge may summarily deny the petition based on the 
deficiencies of the petition. A summary denial is an order in which the 
judge denies the petition without deciding the merits of the issues 
raised in the petition and is warranted if:

[[Page 72088]]

    (1) The petition alleges mere disagreement with a decision;
    (2) The petition is based on newly discovered evidence and fails to 
meet the requirements of Sec.  30.238(e); or
    (3) The petition is based solely on issues or evidence described in 
Sec.  30.238(d)(1) or (2).
    (c) If the petition fails to show proper grounds for rehearing, the 
judge will issue an order denying the petition for rehearing and 
including the reasons for denials.
    (d) If the petition shows proper grounds for rehearing, the judge 
must:
    (1) Cause copies of the petition and all papers filed by the 
petitioner to be served on those persons whose interest in the estate 
may be affected if the petition is granted;
    (2) Allow all persons served a reasonable, specified time in which 
to respond to the petition for rehearing; and
    (3) Consider with or without a hearing, the issues raised in the 
petition.
    (e) The judge may affirm, modify, or vacate the former decision.
    (f) On entry of a final order, including a summary denial, the 
judge must distribute the order to the petitioner, the agencies, and 
the interested parties. The order must include a notice stating that 
interested parties who are adversely affected, or BIA, have the right 
to appeal the final order to the Board, within 30 days of the date on 
which the order was mailed, and giving the Board's address.


Sec.  30.241   May I submit another petition for rehearing?

    No. Successive petitions for rehearing may not be filed by the same 
party or BIA in the same probate case.


Sec.  30.242   When does the judge's order on a petition for rehearing 
become final?

    The order on a petition for rehearing will become final on the 
expiration of the 30 days allowed for the filing of a notice of appeal, 
as provided in this part and Sec.  4.320 of this chapter. The 
jurisdiction of the judge terminates when he or she issues an order 
finally disposing of a petition for rehearing, except for the reopening 
of a case under this part.


Sec.  30.243   May a closed probate case be reopened?

    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.


Sec.  30.244   When must a petition for reopening be filed?

    (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.


Sec.  30.245   What legal standard will be applied to reopen a case?

    (a) If a petition for reopening is filed within 3 years or less of 
the date of the decision or order, the judge may reopen the case to 
correct an error of fact or law in the decision or order.
    (b) When a petition for reopening is filed more than 3 years after 
the date of the decision or order, the judge may reopen the case if the 
judge finds that the need to correct the error outweighs the interests 
of the public and heirs or devisees in the finality of the probate 
proceeding.


Sec.  30.246   What must be included in a petition for reopening?

    (a) A petition for reopening must:
    (1) State specifically and concisely the grounds on which the 
petition is based; and
    (2) Include all relevant evidence in the form of documents and/or 
sworn affidavits supporting any allegations and relief requested in the 
petition.
    (b) A petition filed by an interested party or by BIA on behalf of 
an interested party must also:
    (1) State the date the interested party discovered the alleged 
error;
    (2) Include all relevant evidence in the form of documents and/or 
sworn affidavits, concerning when and how the interested party 
discovered the alleged error;
    (c) A petition filed more than 3 years after the date of the 
decision or order must show that the need to correct the error 
outweighs the interests of the public and heirs or devisees in the 
finality of the probate proceeding, which may be shown by addressing 
the following factors in the petition, as applicable:
    (1) The nature of the error;
    (2) The passage of time;
    (3) Whether the interested party exercised due diligence in 
pursuing his or her rights;
    (4) Whether the interested party's ancestor exercised due diligence 
in pursuing his or her rights and whether a failure to exercise should 
be imputed to the interested party;
    (5) The availability of witnesses and documents;
    (6) The general interest in administrative finality;
    (7) The number of other estates that would be affected by the 
reopening, if known; and
    (8) Whether the property that was in the estate is still available 
for redistribution if the case is reopened, if known.
0
21. Add Sec. Sec.  30.247 through 30.249 to read as follows:
* * * * *
Sec.
30.247 What is not appropriate for a petition for reopening?
30.248 How will the judge decide my petition for reopening?
30.249 What happens when the judge issues an order on reopening?
* * * * *


Sec.  30.247   What is not appropriate for a petition for reopening?

    A petition for reopening may not:
    (a) Raise issues or objections that were already addressed in a 
prior rehearing or reopening order;
    (b) Raise issues or objections when the interested party had the 
opportunity to raise them earlier because they received proper notice 
of the hearing or summary decision; or
    (c) Submit evidence that was available or discoverable at the time 
the decision was issued, or available during the rehearing period. The 
requirements at Sec.  30.238(e) concerning presentation of new evidence 
on rehearing also apply to the presentation of new evidence on 
reopening.


Sec.  30.248   How will the judge decide my petition for reopening?

    (a) The judge may summarily deny the petition for reopening based 
on deficiencies in the petition. A summary denial is an order in which 
the judge denies the petition without deciding the merits of the 
allegations in the petition and is warranted if:
    (1) The petition alleges mere disagreement with a decision;
    (2) The petition raises issues or objections that were previously 
addressed in a rehearing order or reopening order;
    (3) The petition raises only issues or objections by or on behalf 
of an

[[Page 72089]]

interested party for the first time on reopening and that interested 
party received proper notice of the hearing or summary decision;
    (4) The petition is based on newly discovered evidence and fails to 
meet the requirements of Sec.  30.238(e); or
    (5) The petition is based solely on issues or evidence described in 
Sec.  30.245(c).
    (b) If a summary denial is not warranted, the judge will review the 
merits of the petition to determine if the petition asserts proper 
grounds for reopening.
    (1) If the petition fails to assert proper grounds for reopening, 
then the judge will issue an order denying the petition for reopening 
and addressing the merits of the petition.
    (2) If the petition asserts proper grounds for reopening, the judge 
will:
    (i) Cause copies of the petition and all papers filed by the 
petitioner to be served on those persons whose interest in the estate 
may be affected if the petition is granted;
    (ii) Allow all persons served a reasonable, specified time in which 
to respond to the petition for reopening by filling responses, cross-
petitions, or briefs;
    (iii) Suspend further distribution of the estate or income during 
the reopening proceedings, if appropriate, by order to the affected 
agencies;
    (iv) Consider, with or without a hearing, the issues raised in the 
petition; and
    (v) Affirm, modify, or vacate the decision or order.
    (c) On entry of a final order, including a summary denial, the 
judge must distribute the order to the petitioner, the agencies, and 
the interested parties. The order must include a notice stating that 
interested parties who are adversely affected, or BIA, have the right 
to appeal the final order to the Board, within 30 days of the mailing 
date, and giving the Board's address.


Sec.  30.249   What happens when the judge issues an order on 
reopening?

    (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.

Subpart K--[Redesignated as Subpart N]

0
22. Redesignate subpart K, consisting of Sec. Sec.  30.250 through 
30.254, as subpart N and revise the heading to read as follows:

Subpart N--Miscellaneous


Sec. Sec.  30.250 and 30.251 through 30.254   [Redesignated as 
Sec. Sec.  30.500 and 30.503 through 30.506]

0
23. In newly redesignated subpart N, redesignate Sec. Sec.  30.250 and 
30.251 through 30.254 as Sec. Sec.  30.500 and 30.503 through 30.506, 
respectively.

Subpart J--Formal Probate Proceedings

0
24. Add new Sec. Sec.  30.250 through 30.253 to read as follows:
* * * * *
Sec.
30.250 May a correction order be issued to correct typographical and 
other non-substantive errors?
30.251 What happens if BIA identifies additional property of a 
decedent after the probate decision is issued?
30.252 What happens if BIA identifies that property was incorrectly 
included in a decedent's inventory?
30.253 What happens if a request for reconsideration of a 
distribution order is timely made?
* * * * *


Sec.  30.250   May a correction order be issued to correct 
typographical and other non-substantive errors?

    If, after issuance of a decision or other probate order, it appears 
that the decision or other probate order contains non-substantive 
errors, the judge may issue a correction order to correct them. Errors 
are non-substantive if they are merely typographical, clerical, or 
their correction would not change the distribution of a decedent's 
property.
    (a) A judge may issue a correction order for the purpose of 
correcting non-substantive errors on the judge's own motion. A request 
for correction order may also be filed by BIA or an interested party at 
any time.
    (b) Copies of the correction order will be sent to BIA and all 
interested parties.
    (c) The correction order is not subject to appeal to the Board.


Sec.  30.251   What happens if BIA identifies additional property of a 
decedent after the probate decision is issued?

    If, after issuance of a decision, BIA identifies additional trust 
or restricted property of a decedent that it had not already identified 
at the time of the decision, then BIA will submit a petition to OHA for 
an order directing distribution of the additional property.
    (a) OHA will accept the petition at any time after issuance of the 
decision.
    (b) The judge will review the petition to ensure that the petition 
identifies the additional property and the source of that property 
(e.g., inheritance or approval of a deed) and includes the following:
    (1) A certified inventory describing the additional trust or 
restricted land, if applicable, or, if the additional property is trust 
personalty, documents verifying the balance and source of the 
additional trust personalty, and a statement that the inventory lists 
only the property to be added;
    (2) A copy of the decision, or modification or distribution order 
and corresponding inventory issued in the probate case from which the 
property was inherited by the decedent, if applicable;
    (3) A statement identifying each newly added share of any allotment 
that increases the decedent's total share of the ownership interest of 
the allotment to 5 percent or more;
    (4) A copy of BIA's notification to the Tribes with jurisdiction 
over the interests of the list of the additional interests that 
represent less than 5 percent of the entire undivided ownership of each 
parcel (after being added to the decedent's estate) under 25 CFR 
15.401(b); and
    (5) A certification that all interested parties have been 
associated to the case and their names and addresses are current.
    (c) The judge may, at the judge's discretion, either:
    (1) Deny the request for good cause; or
    (2) Address the request with or without a hearing.
    (d) If the judge does not deny the petition, the judge will issue 
an order that directs distribution of the additional property. The 
order may direct that the additional property be distributed in the 
same manner as property already addressed in the decision, or the order 
may direct that the additional property be distributed in a different 
manner than property already addressed in the decision.
    (e) The judge must furnish copies of the distribution order to the 
agency and to all interested parties who share in the estate. The 
distribution order will notify all heirs or devisees, including any 
surviving spouse, of the right to seek reconsideration to:
    (1) Object to the findings and conclusions of the distribution 
order;
    (2) Renounce their interest(s) in any of the additional property;

[[Page 72090]]

    (3) Include the additional property in an existing or new 
consolidation agreement;
    (4) Allege an error in BIA's inventory of additional property under 
Sec.  30.128; or
    (5) File a request to purchase the additional property at probate.
    (f) The distribution order will also instruct the heirs or devisees 
that they must notify OHA in writing of their request for 
reconsideration of the distribution order within 30 days of the mailing 
of the distribution order, and that their right to seek reconsideration 
will be waived if they fail to notify OHA in writing by the deadline. 
For purposes of filing the request for reconsideration, the written 
submission will be considered to be filed with OHA on the date it is 
postmarked or faxed to OHA.
    (g) If OHA does not receive a timely request for reconsideration, 
the distribution order will become final on the 45th day after the 
mailing date. An untimely filed request for reconsideration will not be 
considered by OHA and will not disturb the finality of the distribution 
order.


Sec.  30.252   What happens if BIA identifies that property was 
incorrectly included in a decedent's inventory?

    If, after issuance of a decision, BIA identifies certain trust or 
restricted property or an interest therein that was incorrectly 
included in a decedent's inventory, then BIA will submit a petition to 
OHA for an order notifying all heirs or devisees of the correction and 
addressing any changes in distribution of property resulting from the 
correction.
    (a) OHA will accept the petition at any time after issuance of the 
decision.
    (b) The judge will review the petition to ensure that it identifies 
the property that BIA removed from the estate, explains why the 
property should not have been included, and includes the following:
    (1) A newly issued certified inventory describing the trust or 
restricted land remaining in decedent's estate, if applicable;
    (2) A copy of the decision, or modification or distribution order 
and corresponding inventory issued in the probate case from which BIA 
discovered that the property was incorrectly included in the decedent's 
estate, if applicable;
    (3) A statement identifying each property in the decedent's estate 
that decreased to a total share of the ownership of the allotment to 
less than 5 percent as a result of the removal of property from the 
estate; and
    (4) A certification that all interested parties have been 
associated to the case and their names and addresses are current.
    (c) The judge may, at the judge's discretion, either:
    (1) Deny the request for good cause; or
    (2) Address the request with or without a hearing.
    (d) If the judge does not deny the petition, the judge will issue 
an order that addresses any modifications to the distribution of the 
decedent's property resulting from the correction of the inventory. The 
order may find that the correction of the inventory does not modify the 
distribution of any remaining property in the estate.
    (e) The judge must furnish copies of the distribution order to the 
agency and to all interested parties who share in the estate. The 
distribution order will inform all heirs or devisees, including any 
surviving spouse, of the right to seek reconsideration to:
    (1) Object to the findings and conclusions of the distribution 
order; or
    (2) Allege an error in BIA's inventory under Sec.  30.128.
    (f) The distribution order will also instruct the heirs or devisees 
that they must notify OHA in writing of their objection to the 
distribution order within 30 days of the mailing of the distribution 
order, and that their right to seek reconsideration will be waived if 
they fail to notify OHA in writing by the deadline. For purposes of 
filing the request for reconsideration, the written submission will be 
considered to be filed with OHA on the date it is postmarked or faxed 
to OHA.
    (g) If OHA does not receive a timely request for reconsideration, 
the distribution order will become final on the 45th day after the 
mailing date. An untimely filed request for reconsideration will not be 
considered by OHA and will not disturb the finality of the distribution 
order.


Sec.  30.253   What happens if a request for reconsideration of a 
distribution order is timely made?

    (a) If an heir, devisee, BIA or Tribe files a timely request for 
reconsideration, OHA will:
    (1) Send to BIA a notice of receipt of a petition for 
reconsideration as soon as practicable, ordering that the newly added 
property not be distributed or incorrectly included property not be 
removed, as applicable, during the pendency of the petition for 
reconsideration; and
    (2) Forward a copy of the petition and any documents filed with the 
petition to the interested parties and affected agencies.
    (b) The agencies must not distribute any portion of the estate 
while the petition is pending, unless otherwise directed by the judge.
    (c) If proper grounds for reconsideration are not shown, the judge 
will issue an order denying the petition for reconsideration and 
including the reasons for the denial.
    (d) If proper grounds for reconsideration are shown, the judge 
must:
    (1) Allow all persons served a reasonable, specified time in which 
to submit answers or legal briefs in response to the petition; and
    (2) Consider, with or without a hearing, the issues raised in the 
petition, including requests to renounce, requests to purchase newly 
added properties at probate, and requests to include newly added 
property in an existing or new consolidation agreement.
    (e) The judge will not reconsider findings made in the decision; 
the judge will only reconsider findings made in the distribution order 
regarding the distribution of the additional property or modification 
to distribution resulting from the inventory correction, as applicable.
    (f) If an interested party raises an inventory dispute in the 
petition for reconsideration, the judge may order that the distribution 
order is vacated and remand the BIA's petition to the BIA under Sec.  
30.128 to resolve the inventory dispute.
    (g) The judge will issue a final order on reconsideration which may 
affirm, modify, or vacate the distribution order.
    (h) On entry of a final order on reconsideration, the judge must 
distribute the order to the petitioner, the agencies, and the 
interested parties. The order must include notice stating that 
interested parties who are adversely affected, or BIA, have the right 
to appeal the final order to the Board, within 30 days of the date on 
which the order was mailed, and giving the Board's address.
    (i) Neither BIA nor any interested party may file successive 
petitions for reconsideration.
    (j) The order on a petition for reconsideration will become final 
on the expiration of the 30 days allowed for the filing of a notice of 
appeal, as provided in this part and Sec.  4.320 of this chapter.

Subpart K--[Reserved]

0
25. Add reserved subpart K.

0
26. Add subpart M to read as follows:
Subpart M--Purchase at Probate
Sec.
30.400 What may be purchased at probate?
30.401 Who may purchase at probate?
30.402 Does property purchased at probate remain in trust or 
restricted status?
30.403 Is consent required for a purchase at probate?

[[Page 72091]]

30.404 How do I initiate a purchase at probate?
30.405 When may I initiate a purchase at probate?
30.406 May I withdraw my request to purchase at probate?
30.407 How will OHA address requests to purchase at probate?
30.408 What will OHA include in the probate decision or 
reconsideration order when a purchase at probate request is pending?
30.409 How will a pending purchase at probate request affect how the 
decedent's property is distributed?
30.410 How will the purchase at probate process continue after the 
decision or reconsideration order is issued?
30.411 How will the interests to be purchased at probate be valued?
30.412 What will OHA do when it receives BIA's notification that an 
appraisal/valuation has been completed?
30.413 Who are potential bidders?
30.414 What will be contained in the Order to Submit Bids?
30.415 What may I do if I do not agree with the determination of 
fair market value in the Order to Submit Bids?
30.416 How does OHA decide whether a bid is successful?
30.417 How does the judge notify the parties whether there was a 
successful bid?
30.418 When must the successful bidder pay for the interest 
purchased?
30.419 What happens after the successful bidder submits payment?
30.420 What happens if the successful bidder does not submit payment 
within 30 days?
30.421 When does a purchased interest vest in the purchaser?
30.422 What will happen to any lease income received or accrued from 
purchased land interests before the purchased interest vests in the 
purchaser?
30.423 What may I do if I disagree with the judge's determination to 
approve or deny a purchase at probate?
30.424 When will the order approving or denying the purchase at 
probate become final?

Subpart M--Purchase at Probate


Sec.  30.400   What may be purchased at probate?

    (a) The judge may allow an eligible purchaser to purchase at 
probate all or part of the trust or restricted land in the estate of a 
person who died on or after June 20, 2006. Any interest in trust or 
restricted land, including a life estate that is part of the estate 
(i.e., a life estate owned by the decedent but measured by the life of 
someone who survives the decedent), may be purchased at probate, except 
as provided in paragraph (b) of this section.
    (b) Purchase of minerals-only real property interests (i.e., an 
allotment that does not include a surface interest) may be considered 
for purchase at probate only if sufficient evidence of the fair market 
value of the real property interest is submitted. No interest in a 
minerals-only property may be purchased at probate on the basis of the 
value of the minerals themselves.


Sec.  30.401   Who may purchase at probate?

    An eligible purchaser at probate is any of the following:
    (a) Any devisee or eligible heir who is receiving an interest in 
the same parcel of land by devise or descent in the probate proceeding;
    (b) Any co-owner;
    (c) The Indian Tribe with jurisdiction over the parcel containing 
the interest; or
    (d) The Secretary on behalf of the Tribe.


Sec.  30.402   Does property purchased at probate remain in trust or 
restricted status?

    Yes. The property interests purchased at probate must remain in 
trust or restricted status.


Sec.  30.403   Is consent required for a purchase at probate?

    (a) Except as provided in paragraphs (b) and (c) of this section, 
to purchase at probate a decedent's interest in trust or restricted 
property, the eligible purchaser must have the consent of:
    (1) The heir or devisee of the share to be purchased;
    (2) Any surviving spouse whose share is to be purchased and who 
receives a life estate under 25 U.S.C. 2206(a)(2)(A) or (D); or
    (3) Any recipient of an interest received under an approved 
consolidation agreement whose share is to be purchased.
    (b) If consent is required from an heir or devisee for a purchase 
at probate, the consent may be given either:
    (1) During a hearing as part of the record; or
    (2) In writing to OHA.
    (c) An heir or devisee's failure to attend a hearing or respond to 
an order will not be presumed to constitute consent.
    (d) An heir or devisee may withdraw consent at any time before the 
purchase is final.
    (1) To notify OHA, the heir or devisee must state, either on record 
at the probate hearing, or in writing to OHA, that the heir or devisee 
is not willing to consent to sell the property under any circumstances 
and/or is not willing to consider any bids to purchase the property 
interest.
    (2) When OHA receives such notice, it will deny the request to 
purchase the property interest to which the notice applies.
    (e) If you are the Tribe with jurisdiction over the parcel 
containing the interest, you do not need the consent of those listed 
under paragraph (a) of this section if the following five conditions 
are met:
    (1) The interest will descend by intestate succession;
    (2) The judge determines based on the Department's records that the 
decedent's interest at the time of death was less than 5 percent of the 
entire undivided ownership of the parcel of land;
    (3) The heir or surviving spouse was not residing on the property 
at the time of the decedent's death;
    (4) The heir or surviving spouse is not a member of your Tribe or 
eligible to become a member; and
    (5) The interest is not included in an approved consolidation 
agreement.
    (f) BIA may purchase an interest in trust or restricted land on 
behalf of the Tribe with jurisdiction over the parcel containing the 
interest if BIA obtains consent under paragraph (a) of this section or 
the conditions in paragraph (c) of this section are met.


Sec.  30.404   How do I initiate a purchase at probate?

    Any eligible purchaser may initiate a purchase at probate by 
submitting a written request to OHA to purchase at probate.


Sec.  30.405   When may I initiate a purchase at probate?

    (a) To initiate a purchase at probate during the initial probate 
proceeding, the eligible purchaser must submit the written request 
before the completion of the first probate hearing.
    (b) If a property interest the eligible purchaser would like to 
purchase has been added to the decedent's estate under Sec.  30.251, 
the purchaser must submit the written request within 30 days of the 
mailing of the distribution order issued under Sec.  30.251(d).


Sec.  30.406   May I withdraw my request to purchase at probate?

    At any point before the purchase is complete, a purchaser may 
withdraw a request to purchase at probate. In order to withdraw a 
request to purchase, the requester must file with OHA a written 
statement that the request is withdrawn. The requester is not required 
to provide reasons or justification for withdrawal of the request.


Sec.  30.407   How will OHA address requests to purchase at probate?

    The judge has discretion to deny a request to purchase at probate 
in the decision or at any time thereafter. If one or more requests to 
purchase at probate

[[Page 72092]]

are timely filed, OHA will address those requests in the probate 
decision (or reconsideration order if the request to purchase is for 
property that has been added to the decedent's estate under Sec.  
30.251) and either deny the requests at that time or provide 
instructions for continuing the purchase at probate process.


Sec.  30.408   What will OHA include in the probate decision or 
reconsideration order when a purchase at probate request is pending?

    (a) If a purchase at probate request is pending at the time the 
probate decision (or reconsideration order under Sec.  30.251) is 
issued, and is not denied in the decision (or reconsideration order), 
the decision (or reconsideration order) will include the following to 
address the request:
    (1) A list of all requests to purchase at probate that have been 
submitted;
    (2) Notification to the parties as to whether consent of the 
applicable heirs or devisees is required to approve the requested 
purchase; and
    (3) Direction to BIA to obtain an appraisal or valuation for each 
interest for which a purchase at probate request has been submitted.
    (b) If the purchase of the interest requires consent of the 
applicable heirs or devisees, the probate decision or reconsideration 
order will also:
    (1) Direct the heirs or devisees to submit written notification 
within 30 days of the mailing date of the decision or reconsideration 
order that the heirs or devisees would consider selling the interest to 
an eligible purchaser during the probate process if a bid is made for 
fair market value or greater;
    (2) Inform the heirs or devisees that OHA may consider failure to 
provide such written notification as a refusal to consent to sell the 
property during probate, and may rely on such refusal to deny the 
request to purchase at probate; and
    (3) Direct BIA to postpone seeking an appraisal/valuation of that 
property until BIA receives future notice from OHA that at least one 
heir or devisee has filed the written notification that the heir or 
devisee would consider selling the interest.


Sec.  30.409   How will a pending purchase at probate request affect 
how the decedent's property is distributed?

    When the decision (or distribution order following a 
reconsideration order under Sec.  30.251) becomes final, BIA may 
distribute the estate as stated in the decision or distribution order. 
The decision or distribution order will identify any property interest 
that is the subject of a pending request for purchase at probate, and 
that the property interest will be conveyed with an encumbrance, which 
will remain on the property interest until the request is fully 
addressed. The encumbrance does not affect distribution of trust 
personalty.


Sec.  30.410   How will the purchase at probate process continue after 
the decision or reconsideration order is issued?

    After a decision or reconsideration order is issued:
    (a) If consent is required for the purchase of an interest, and an 
heir or devisee does not submit written notification that he or she 
would consider selling the interest by the deadline OHA established, 
the request to purchase the applicable property interest(s) is denied 
by operation of law. In such cases, OHA will notify the BIA that it may 
remove the encumbrance remaining on the applicable property 
interest(s).
    (b) If the heirs or devisees submit the written notification that 
they would consider selling the interest by the deadline OHA 
established, then OHA will notify BIA that it may obtain an appraisal/
valuation of the property.
    (c) In any other instances in which a purchase request is denied, 
BIA may remove any encumbrance remaining on the applicable property 
interest(s).


Sec.  30.411   How will the interests to be purchased at probate be 
valued?

    (a) For each parcel for which a request to purchase has been 
submitted, BIA will obtain appraisal(s) or other fair market 
valuation(s) in compliance with the Uniform Standards of Professional 
Appraisal Practice (USPAP) or other approved valuation methods under 25 
U.S.C. 2214.
    (b) Any appraisal/valuation must be made on the basis of the fair 
market value of the parcel as of the date of the decedent's death.
    (c) No valuation document filed by the BIA, aside from an 
appraisal, will be used to determine the fair market value of trust 
land during a purchase at probate unless the document clearly states 
that it assesses the fair market value of the real property interest or 
is accompanied by a certification that it does so.


Sec.  30.412   What will OHA do when it receives BIA's notification 
that an appraisal/valuation has been completed?

    When OHA receives BIA's notification that an appraisal/valuation 
has been completed and BIA files a Petition to Complete Purchase at 
Probate, OHA will issue an Order to Submit Bids to all potential 
bidders to submit bids for property interests with pending purchase at 
probate requests.
    (a) Potential bidders may submit bids even if they have not 
previously submitted a request to purchase at probate.
    (b) OHA will identify the individuals/entities who are eligible to 
submit bids for each property interest available for purchase at 
probate.


Sec.  30.413   Who are potential bidders?

    (a) The Tribe will be the only potential bidder and no other bids 
will be accepted if:
    (1) The Tribe with jurisdiction over the property submits the only 
request to purchase within the deadline; and
    (2) The requirements of Sec.  30.403(c) (i.e., consent of the heir 
is not required) are met.
    (b) In other situations, potential bidders may include:
    (1) Any eligible purchaser who has satisfied the requirements of 
Sec. Sec.  30.404 and 30.405;
    (2) Eligible heirs;
    (3) Eligible devisees;
    (4) The Indian Tribe with jurisdiction over the property interest; 
and
    (5) Co-owners who have previously notified BIA in writing that they 
wish to receive probate notices concerning that allotment.


Sec.  30.414   What will be contained in the Order to Submit Bids?

    For each property for which a request to purchase at probate is 
pending, the Order to Submit Bids will include:
    (a) A finding of the fair market value of the interest to be sold, 
determined in accord with the appraisal/valuation provided by the BIA 
under Sec.  30.411;
    (b) Information concerning where a copy of the appraisal/valuation 
may be viewed;
    (c) Direction to potential bidders to submit bids to purchase the 
property that are equal to or greater than the fair market value;
    (d) A deadline by which OHA must receive bids from all potential 
bidders; and
    (e) A statement that if no bids are submitted by the deadline, the 
request to purchase will be denied.


Sec.  30.415   What may I do if I do not agree with the determination 
of fair market value in the Order to Submit Bids?

    (a) You may object to the determination of fair market value stated 
in the Order to Submit Bids if:
    (1) You are the heir, devisee, or surviving spouse whose interest 
is to be sold;
    (2) You filed a written request to purchase; or

[[Page 72093]]

    (3) Any potential bidder or other party who may be affected by the 
determination of the fair market value.
    (b) To object to the determination of fair market value:
    (1) You must file a written objection with OHA no later than 45 
days after the mailing date of the Order to Submit Bids.
    (2) The objection must:
    (i) State the reasons for the objection; and
    (ii) Include any supporting documentation showing why the fair 
market value should be modified.
    (3) You must provide copies of the written objection and any 
supporting documentation to all parties who have an interest in the 
purchase of the property.
    (c) Any party who may be affected by the determination of the fair 
market value may file a response to the written objection with OHA no 
later than 45 days after the date the written objection was served on 
the interested parties. Any document supporting the party's response 
must be submitted with the response.
    (d) The judge will consider any timely submitted written objection 
and responses, and will determine whether to modify the finding of fair 
market value, with or without a valuation hearing. OHA will issue a 
Modified Order to Submit Bids that addresses the objection and 
responses.
    (e) If you were directed to submit a bid, you may preserve your 
right to submit a bid by filing the written objection instead of a bid.


Sec.  30.416   How does OHA decide whether a bid is successful?

    OHA will decide that a bid is successful if it meets the following 
requirements.
    (a) The bid is equal to or greater than the fair market value of 
the interest and was timely filed.
    (b) In cases in which consent of an heir, devisee, or surviving 
spouse is required for the purchase, the applicable heir devisee, or 
surviving spouse accepts a bid.
    (1) OHA may hold a hearing for the purpose of determining whether 
the applicable heir, devisee, or surviving spouse accepts a bid.
    (2) If multiple bids are submitted, the applicable heir, devisee, 
or surviving spouse may choose which bid to accept.
    (3) If the applicable heir, devisee, or surviving spouse does not 
accept any bid for his or her property interest, the request to 
purchase that property interest at probate will be denied.


Sec.  30.417   How does the judge notify the parties whether there was 
a successful bid?

    (a) When a judge determines that a bid is successful, the judge 
will issue a Notice of Successful Bid to all bidders, OST, the BIA 
agency that prepared the probate file, and the BIA agency having 
jurisdiction over the interest sold. The Notice of Successful Bid will 
include the following information:
    (1) The parcel and interest sold;
    (2) The identity of the successful bidder;
    (3) The amount of the successful bid; and
    (4) Instructions to the successful bidder to submit payment for the 
interest.
    (b) If no successful bids are received, the judge will issue an 
order denying the request to purchase the property.


Sec.  30.418   When must the successful bidder pay for the interest 
purchased?

    The successful bidder must make payment, according to the 
instructions in the Notice of Successful Bid, of the full amount of the 
purchase price no later than 30 days after the mailing date of the 
Notice of Successful Bid.


Sec.  30.419   What happens after the successful bidder submits 
payment?

    When the judge is notified by BIA that BIA has received payment, 
the judge will issue an order:
    (a) Approving the sale and stating that title must transfer as of 
the date the order becomes final; and
    (b) For the sale of an interest subject to a life estate, directing 
allocation of the proceeds of the sale and accrued income among the 
holder of the life estate and the holders of any remainder interests 
using 25 CFR part 179.


Sec.  30.420   What happens if the successful bidder does not submit 
payment within 30 days?

    (a) If the successful bidder fails to pay the full amount of the 
bid within 30 days, the judge will issue an order denying the request 
to purchase or the bid (whichever is applicable) and the interest in 
the trust or restricted property will be distributed as determined by 
the judge in the decision or distribution order.
    (b) The time for payment may not be extended.
    (c) Any partial payment received will be returned.


Sec.  30.421   When does a purchased interest vest in the purchaser?

    If the request to purchase (or a bid submitted by a potential 
bidder) is approved, the purchased interest vests in the purchaser on 
the date OHA's order approving the sale becomes final.


Sec.  30.422   What will happen to any lease income received or accrued 
from purchased land interests before the purchased interest vests in 
the purchaser?

    Any lease income received or accrued from a property interest 
before the date the purchased interest vests in the purchaser will be 
paid to the heir(s), devisee(s), or surviving spouse from whom purchase 
of the interest was made based on the fractional ownership interests in 
the parcel as determined in the decision or distribution order.


Sec.  30.423   What may I do if I disagree with the judge's 
determination to approve or deny a purchase at probate?

    If you are an interested party who is adversely affected by the 
judge's order to approve or deny a purchase at probate, you may file an 
appeal to the Board within 30 days after the mailing date of OHA's 
order approving or denying the purchase at probate.


Sec.  30.424   When will the order approving or denying the purchase at 
probate become final?

    The order to approve or deny the purchase at probate becomes final 
at the end of the 30-day appeal period, unless a timely appeal is 
filed.

Subpart N--Miscellaneous

0
27. Add Sec. Sec.  30.501 and 30.502 to read as follows:


Sec.  30.501   When is joint tenancy presumed?

    A judge will presume that a testator intended to devise interests 
in joint tenancy when:
    (a) A testator devises trust or restricted interests in the same 
parcel of land to more than one person; and
    (b) The will does not contain clear and express language stating 
that the devisees receive the interests as tenants in common.


Sec.  30.502   How does a judge resolve conflicts between the anti-
lapse provision and the presumption of joint tenancy?

    If the presumption of joint tenancy and anti-lapse provisions 
conflict, then the judge will give priority to the presumption of joint 
tenancy and the share of the deceased devisee will descend to the 
surviving devisees.

0
28. Revise newly redesignated Sec.  30.506 to read as follows:


Sec.  30.506   When a decedent died intestate without heirs, what law 
applies to trust or restricted property?

    The law that applies to trust or restricted property when a 
decedent died intestate without heirs depends upon whether the decedent 
died before June 20, 2006 or on or after June 20, 2006.

[[Page 72094]]

    (a) When the judge determines that a decedent died before June 20, 
2006, intestate without heirs, the judge will apply 25 U.S.C. 373a or 
25 U.S.C. 373b to address distribution of trust or restricted property 
in the decedent's estate. If it is necessary to determine the value of 
an interest in land located on the public domain, to properly apply 25 
U.S.C. 373b, the judge will determine fair market value based on an 
appraisal or other valuation method developed by the Secretary under 25 
U.S.C. 2214. If the interest in land located on the public domain is 
valued at more than $50,000, the judge's decision concerning 
distribution of that interest will be a recommended decision only.
    (b) When the judge determines that a decedent died intestate on or 
after June 20, 2006, without surviving lineal descendants, parents, or 
siblings who are eligible heirs, the judge will apply provisions of the 
Act to determine distribution of trust or restricted land in the 
decedent's estate.
    (1) If the decedent died without surviving lineal descendants, 
parents, or siblings who are eligible heirs, and the decedent owned at 
least 5 percent of an allotment, that interest will be distributed 
either to the Indian Tribe with jurisdiction over the interest or, if 
there is no Indian Tribe with jurisdiction, then split equally among 
the co-owners as of the decedent's date of death, subject to the 
exceptions and limitations detailed in 25 U.S.C. 2206(a)(2)(B)-(C).
    (2) If the decedent died without surviving lineal descendants who 
are eligible heirs, and the decedent owned less than 5 percent of an 
allotment, that interest will be distributed either to the Indian Tribe 
with jurisdiction over the interest or, if there is no Indian Tribe 
with jurisdiction, then split equally among the co-owners as of the 
decedent's date of death, subject to the exceptions and limitations 
concerning small fractional interests detailed in 25 U.S.C. 
2206(a)(2)(D).
    (3) For either paragraph (b)(1) or (2) of this section, the judge 
will also determine whether the decedent had a surviving spouse, and 
whether the surviving spouse is entitled to a life estate.

0
29. Add Sec.  30.507 to read as follows:


Sec.  30.507   How will trust personalty be distributed if decedent 
died intestate on or after June 20, 2006, and the Act does not specify 
how the trust personalty should be distributed?

    When the judge determines that a decedent died intestate on or 
after June 20, 2006, without a surviving spouse or eligible heirs under 
the Act, and without trust or restricted land over which one, and only 
one, Indian Tribe has jurisdiction, the judge will direct distribution 
of trust personalty, including trust funds that were on deposit in the 
decedent's IIM account or owing to the decedent as of the decedent's 
date of death, as follows:
    (a) To the decedent's surviving children, grandchildren, great-
grandchildren, parents, or siblings who are not eligible heirs under 
the Act, in the order set forth in 25 U.S.C. 2206(a)(2)(B).
    (b) If trust personalty does not descend under paragraph (a) of 
this section, then to the decedent's surviving nieces and nephews, in 
equal shares.
    (c) If trust personalty does not descend under paragraph (b) of 
this section, then to the Indian Tribe in which the decedent was 
enrolled at the time the decedent died.
    (d) If trust personalty does not descend under paragraph (c) of 
this section, then:
    (1) To the Indian Tribe in which the decedent's biological parents 
were enrolled, if both were enrolled in the same Tribe;
    (2) To the Indian Tribes in which the decedent's biological parents 
were enrolled, in equal shares, if each of the decedent's biological 
parents was enrolled in a different Tribe; or
    (3) If only one biological parent was enrolled in an Indian Tribe, 
to the Indian Tribe in which that biological parent was enrolled.
    (e) If trust personalty does not descend under paragraph (d) of 
this section, then:
    (1) To the Indian Tribe in which the decedent's biological 
grandparents were enrolled; if all enrolled biological grandparents 
were enrolled in the same Tribe;
    (2) To the Indian Tribes in which the decedent's biological 
grandparents were enrolled, in equal shares, if two or more of the 
decedent's biological grandparents were enrolled in different Tribes; 
or
    (3) If only one biological grandparent was enrolled in an Indian 
Tribe, to the Indian Tribe in which that biological grandparent was 
enrolled.
    (f) If trust personalty does not descend under paragraph (e) of 
this section, then to an Indian Tribe selected by the judge, in 
consideration of the following factors:
    (1) The origin of the funds in the decedent's IIM account;
    (2) The Tribal designator contained in the owner identification 
number or IIM account number assigned to the decedent by BIA; and
    (3) The geographic origin of the decedent's Indian ancestors.
    This action is taken pursuant to delegated authority.

Bryan Newland,
Assistant Secretary--Indian Affairs.

Eric Werwa,
Deputy Assistant Secretary--Policy and Environmental Management 
Exercising the delegated authority of the AS-PMB.
[FR Doc. 2021-27257 Filed 12-17-21; 8:45 am]
BILLING CODE 4337-15-P