[Title 25 CFR 15]
[Code of Federal Regulations (annual edition) - April 1, 2002 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter C - PROBATE]
[Part 15 - PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE CIVILIZED TRIBES]
[From the U.S. Government Printing Office]
25INDIANS12002-04-012002-04-01falsePROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE CIVILIZED TRIBES15PART 15INDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIORPROBATE
PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE CIVILIZED TRIBES--Table of Contents
Subpart A--Introduction
Sec.
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Will the Secretary probate all the property in Indian estates?
15.4 How does the probate process work?
Subpart B--Starting the Probate Process
15.101 How do I begin the BIA probate process?
15.102 May I notify the BIA of a death if I am not related to the
decedent?
15.103 When should the BIA be notified of a death?
15.104 What other documents does the BIA need to process a probate
package?
15.105 Will the BIA wait to begin the probate process until it is
notified of the decedent's death?
15.106 Can I get emergency assistance for funeral services from the
decedent's IIM account?
15.107 Who prepares an Indian probate package?
15.108 What agency prepares the probate package if the decedent was not
an enrolled member of a tribe or is a member of more than one
tribe?
15.109 Can a probable heir or beneficiary give up his/her interest in
trust or restricted lands or trust funds?
Subpart C--Preparing the Probate Package
15.201 What will the BIA do with the documents that I provide?
15.202 What must the complete probate package contain?
15.203 What happens after the BIA prepares the probate package?
15.204 After the probate package has been sent to a BIA deciding
official, may I still request a formal hearing with an ALJ?
15.205 When will the BIA refer a probate to the OHA?
15.206 Is there a summary process for distributing an estate with only
trust cash assets?
Subpart D--Probate Processing, Claims and Distributions
15.301 What does the attorney decision maker do with the probate
package?
15.302 What law is used by the deciding official to determine the
distribution of the trust estate?
15.303 If the decedent owed me money, how do I file a claim against the
estate?
15.304 How does the BIA deciding official determine if a claim will be
allowed and paid?
15.305 What claims will be paid first?
15.306 Can the BIA deciding official reduce the amount of claims?
15.307 What if there is not enough money in the decedent's IIM account
to pay all claims?
15.308 Will the BIA use future income to pay claims?
15.309 Will the BIA deciding official authorize payment of interest or
penalties accruing after the date of death?
15.310 When will the BIA deciding official issue a decision on the
probate?
15.311 What is in the written decision/order of the BIA deciding
official?
15.312 What happens after the decision is made?
Subpart E--Appeals
15.401 May I appeal the decision of the BIA deciding official?
15.402 How do I file an appeal of the decision/order?
15.403 How long do I have to file an appeal?
15.404 What will happen to the estate if an appeal is filed?
15.405 How does the ALJ review a decision issued by a BIA deciding
official?
Subpart F--Information and Records
15.501 If I have a question about a probate that has been assigned to a
BIA deciding official, may I contact the deciding official
directly?
15.502 How can I find out the status of a probate?
15.503 Who owns the records associated with this part?
15.504 How must records associated with this part be preserved?
Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended,
sec. 1, 38 Stat. 588, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat.
1021, 1022, 25 U.S.C. 372, 373, 374, 373a, 373b; Federal Records Act, as
amended, 44 U.S.C. Sec. 3101, et seq. (1950).
Cross reference: For special rules applying to proceedings in Indian
Probate (Determination of Heirs and Approval of Wills, Except for
Members of the Five Civilized Tribes and Osage Indians), including
hearings and appeals within the jurisdiction of the Office of Hearings
and Appeals, see Title 43, Code of
[[Page 65]]
Federal Regulations, Part 4, Subpart D; Funds of deceased Indians other
than the Five Civilized Tribes, see Title 25 Code of Federal
Regulations, Part 115.
Source: 66 FR 7089, Jan. 22, 2001, unless otherwise noted.
Subpart A--Introduction
Sec. 15.1 What is the purpose of this part?
This part contains the procedures that the Secretary follows to
initiate the probate of the trust estate of a deceased individual Indian
who owned trust or restricted property. This part tells you how to file
the necessary documents to probate the trust estate. This part also
describes how probates will be processed by the BIA, and how probates
may be sent to the OHA for disposition.
Sec. 15.2 What terms do I need to know?
ALJ means an administrative law judge or other employee of the
Department of the Interior's Office of Hearings and Appeals (OHA) upon
whom authority has been conferred by the Secretary to conduct hearings
in accordance with 43 CFR Part 4 Subpart D.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
IIM account means Individual Indian Money Account.
LTRO means the Land Titles and Records Office within the BIA.
OHA means the Hearings Division, Office of Hearings and Appeals,
Department of the Interior.
OTFM means the Office of Trust Funds Management, within the Office
of the Special Trustee for American Indians, Department of the Interior,
or its authorized representative.
Agency means the agency office or any other designated office in the
BIA having jurisdiction over trust or restricted property and money.
This term also means any office of a tribe which has contracted or
compacted the BIA probate function under 25 U.S.C. Sec. 450f or 25
U.S.C. Sec. 458cc.
Attorney decision maker means an attorney with the BIA, who reviews
a probate package, determines heirs, approves wills and beneficiaries of
the will, determines creditors claims, and issues a written decision.
Beneficiary means any individual who receives trust or restricted
property or money in a decedent's will.
Day means a calendar day, unless otherwise stated.
Decedent means a person who is deceased.
Deciding official means the official with the delegated authority to
make a decision on a probate matter, and may include a BIA regional
director, agency superintendent, field representative, or attorney
decision maker (BIA deciding official); or an OHA ALJ or other OHA
designated official (OHA deciding official).
Decision/order means a written document issued by the deciding
official determining heirs, approving wills and beneficiaries of the
will, approving creditors claims, and ordering distribution of property
and money.
Domicile means the legal residence of the person.
Estate means the trust cash assets, restricted or trust lands owned
by the decedent at the time of his death.
Form OHA-7 means a form issued by the OHA which lists data for
heirship and family history, and provides information on any wills,
trust and restricted property, adoptions, names and addresses of all
interested parties.
Heir means any individual who receives trust or restricted property
or money from a decedent in an intestate proceeding.
IIM account means funds held in an individual Indian monies account
by the OTFM or a tribe performing this function under a contract or
compact.
Interested parties means any probable or actual heir, any
beneficiary under a will, any party asserting a claim against a deceased
Indian's estate, and any tribe having a statutory option to purchase the
trust or restricted property interest of a decedent.
Intestate means the decedent died without a will.
Minor means an individual that has not reached age of majority as
defined by the applicable tribal or state law.
Probate means the legal process by which applicable tribal law,
state law, or federal law that affects the distribution of the
decedent's estate is applied to: (1) determine the heirs; (2) approve
wills and beneficiaries; and (3) transfer
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any funds held in trust by the Secretary for a decedent to the heirs,
beneficiaries, or other persons or entities entitled by law.
Probate clerk means a BIA or tribal employee who is responsible for
processing a probate package.
Probate specialist means the BIA or tribal employee who is trained
in Indian probate matters.
Restricted land means land the title to which is held by an
individual Indian or a tribe and which can only be alienated or
encumbered by the owner with the approval of the Secretary because of
limitations contained in the conveyance instrument pursuant to federal
law.
Secretary means the Secretary of the Interior or an authorized
representative.
Superintendent or Field Representative means an authorized
representative of the Secretary of the Interior who is the officer in
charge of a BIA agency or field office.
Testate means the decedent executed a will before his death.
Trust cash assets means the funds held in an IIM account.
Trust land means the land, or an interest therein, for which the
United States holds fee title in trust for the benefit of an individual
Indian.
Vendor or Creditor means any individual or company who submits a
claim for payment from a decedent's estate.
We/Us means either an official of the BIA or a tribe performing
probate functions under a BIA contract or compact.
Will means a written testamentary document, including any properly
executed written changes, called codicils, which was signed by the
decedent and was attested by two disinterested adult witnesses, that
states who will receive the decedent's trust or restricted property.
You/I means an interested party, as defined herein, with an interest
in the decedent's estate unless a specific section says otherwise.
Sec. 15.3 Will the Secretary probate all the property in Indian estates?
(a) No. We will probate only the trust or restricted property in the
estate of an Indian decedent.
(b) We will not probate:
(1) Real or personal property in an estate of an Indian decedent
that is not trust or restricted property;
(2) Restricted property derived from allotments in the estates of
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw,
Creek and Seminole) in Oklahoma; and
(3) Restricted interests derived from allotments made to Osage
Indians in Oklahoma (Osage Nation) and Osage headright interests.
(c) We will probate the estate of a deceased member of the Five
Civilized Tribes or Osage Nation who owns an interest in land derived
from an individual Indian other than the Five Civilized Tribes or Osage
Nation.
Sec. 15.4 How does the probate process work?
The basic steps of the probate process are:
(a) We find out about a person's death (see subpart B for details);
(b) We prepare a probate package which includes documents that you
send us (see subpart C for details);
(c) We refer the completed probate package to a deciding official in
the BIA or the OHA (see subpart D for details);
(d) The deciding official decides how to distribute the property
and/or funds deposited in an IIM account (see subparts D and E for
details).
Subpart B--Starting the Probate Process
Sec. 15.101 How do I begin the BIA probate process?
As soon as possible you should contact the nearest BIA agency or
regional office where the decedent was enrolled to inform us of the
decedent's death. You must provide a certified copy of the death
certificate, if one exists. If a death certificate does not exist, you
may provide one or more of the following:
(a) A copy of the obituary notice from a local newspaper; or
(b) Any other document that we accept that verifies the death, such
as a church record or a court record; and
(c) An affidavit of death prepared by the tribe with whom the
decedent was
[[Page 67]]
associated or someone who knows about the decedent's death that supports
the information in paragraph (a) or (b) of this section.
Sec. 15.102 May I notify the BIA of a death if I am not related to the decedent?
Yes. You do not need to be related to the decedent in order to
notify us of the death. You can be a friend, neighbor, or any other
interested party.
Sec. 15.103 When should the BIA be notified of a death?
There is no deadline for notifying us of a death. However, you
should notify us of a death as soon as possible after the person dies.
Sec. 15.104 What other documents does the BIA need to process a probate package?
(a) You should provide us with the following documents and
information before we can begin to process the probate package.
(1) Social Security number of the decedent;
(2) The birth certificate or other record of birth of the decedent;
(3) All death records including those listed in Sec. 15.101;
(4) A list of known creditors against the estate and their
addresses;
(5) Current names and addresses of potential heirs and
beneficiaries;
(6) Any statements renouncing an interest in the estate;
(7) Documents from a court of competent jurisdiction, including but
not limited to:
(i) All marriage licenses of the decedent;
(ii) All divorce decrees of the decedent;
(iii) Adoption and guardianship records relevant to the decedent;
(iv) Any sworn statements regarding the decedent's family, including
any statements of paternity or maternity;
(v) Any name changes; and
(vi) Order requiring payment of child support;
(8) All original or certified copies of wills and codicils, and any
revocations; and
(9) Any additional documents you provide or that we request.
(b) You must inform us if any of the documents or information
identified in this part are not available.
Sec. 15.105 Will the BIA wait to begin the probate process until it is notified of the decedent's death?
No. We may find out about the death of a person without being
notified by an interested party. If we do, and if the decedent meets the
criteria in Sec. 15.3, we will initiate the process to collect the
necessary documentation. You should not assume that we will find out
about a death. To assure timely distribution of the estate, you should
notify us as provided in Sec. 15.101.
Sec. 15.106 Can I get emergency assistance for funeral services from the decedent's IIM account?
(a) If you are responsible for making the funeral arrangements on
behalf of the family of a decedent who had an IIM account and you have
an immediate need to pay for funeral arrangements prior to burial, you
may make a request to the BIA for up to $1,000 from the decedent's IIM
account if the decedent's IIM account has more than $2,500 in the
account at the date of death.
(b) You must apply for this assistance and submit to the BIA an
original itemized estimate of the cost of the service to be rendered and
the identification of the service provider.
(c) We may approve reasonable costs up to $1,000 that are necessary
for the burial services, taking into consideration the total amount in
the account, the number of probable heirs or beneficiaries of whom we
are aware, the amount of any claims against the account of which we are
aware, and any other relevant factor.
(d) We will make payments directly to the providers of the services.
Sec. 15.107 Who prepares an Indian probate package?
The probate specialist or probate clerk at the agency or tribe where
the decedent is an enrolled member will prepare the probate package in
consultation with the probable heirs or beneficiaries who can be
located.
[[Page 68]]
Sec. 15.108 What agency prepares the probate package if the decedent was not an enrolled member of a tribe or is a member of more than one tribe?
(a) If the decedent was not an enrolled member of a tribe, but owns
interests in trust or restricted property, the agency that has
jurisdiction over the tribe with the strongest association with the
decedent will prepare the probate package, unless otherwise provided by
federal law.
(b) If the decedent was is a member of more than one tribe, the
agency that has jurisdiction over the tribe with the strongest
association with the decedent will prepare the probate package, unless
otherwise provided by federal law.
Sec. 15.109 Can a probable heir or beneficiary give up his/her interest in trust or restricted lands or trust funds?
Unless otherwise provided by federal law or a tribal inheritance
code approved by the Secretary, you must file a statement renouncing
your interest with the BIA or the OHA before the deciding official
issues an order.
(a) If you are a non-Indian and 21 years or older, you may give up
all or part of your interest by submitting a notarized statement in
which you renounce your interest in the estate.
(b) If you are an Indian and 21 years or older and you wish to give
up all or part of your interest in the estate, we must refer your
request to the OHA in accordance with 43 CFR 4.208.
Subpart C--Preparing the Probate Package
Sec. 15.201 What will the BIA do with the documents that I provide?
Once we receive the documents that you provide us under Sec. 15.105,
the probate specialist or probate clerk will:
(a) Use the documents to prepare a probate package; and
(b) Consult with you and any other sources to obtain any additional
information needed for a complete package.
Sec. 15.202 What must the complete probate package contain?
The complete probate package must contain all of the following:
(a) A certified copy of the death certificate, if one exists, or
some other reliable evidence of death as required by Sec. 15.101;
(b) A completed Form OHA-7, ``Data for Heirship Findings and Family
History,'' certified by the BIA;
(c) A certified inventory of trust or restricted real property;
(d) A statement describing all income generating activity;
(e) A copy of the decedent's IIM account ledger showing:
(1) The balance of the account at the date of death; and
(2) The balance of the account at the date of probate package
submission;
(f) All original or certified copies of wills, codicils and any
revocations of wills or codicils;
(g) Any statements renouncing interest that have been submitted to
the agency;
(h) Claims of creditors against the estate;
(i) All documentation of payment of claims paid prior to probate
proceeding;
(j) All other documents required in Sec. 15.105;
(k) Tribal options to purchase interests of a decedent;
(l) Affidavit of the probate clerk or probate specialist that all
efforts to locate the probable heirs and beneficiaries have been
exhausted; and
(m) Any other documentation that may be required at the time of
probate proceedings.
Sec. 15.203 What happens after the BIA prepares the probate package?
Within 30 days after all the documents required by Sec. 15.105 and
Sec. 15.202 are received, a probate specialist will review the probate
package and determine who will be the appropriate deciding official.
(a) If the decedent's estate contains only trust cash assets of a
value less than $5,000 not including any interest that may have accrued
after the death of the decedent, the probate package may be processed in
accordance with Sec. 15.206 and may be referred to a BIA
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deciding official subject to the provisions in Sec. 15.205.
(b) All other probate cases will be referred to a BIA attorney
decision maker or an OHA deciding official subject to the provisions in
Sec. 15.205.
(c) We will notify all interested parties of:
(1) The right of the probable heirs or beneficiaries to request a
formal hearing before an ALJ;
(2) The identification of the probable legal heirs; or
(3) The submission of an original or certified copy of a will or
revocation and listed beneficiaries;
(4) Any known claims against the estate; and (5) The address of the
designated office where the probate package has been sent.
(d) If the deciding official is at the BIA and you have not
requested a formal hearing before an ALJ, the probate specialist will
send the probate package to the BIA deciding official within 30 days
after the date the probate specialists mailed the notice to you.
(e) If the deciding official is at the OHA, then we will send the
probate package to the OHA deciding official and notify the probable
heirs that they may ask the OHA for an in-person hearing at a site
convenient to most of the parties, a video conference or teleconference
hearing (if available), or a decision based on documents in the probate
package.
(f) On the same day that the probate specialist has determined who
will be the designated deciding official, we will notify you of this
determination by certified mail, return receipt requested.
Sec. 15.204 After the probate package has been sent to a BIA deciding official, may I still request a formal hearing with an ALJ?
Yes, you may request a formal hearing before an ALJ at any time up
until the date the BIA deciding official renders a decision.
Sec. 15.205 When will the BIA refer a probate to the OHA?
We will refer a probate to the OHA under Sec. 15.203(d) if the
probate specialist determines that a referral is appropriate. In
determining whether to refer a probate to the OHA, the probate
specialist will consider all of the criteria listed below:
(a) Problems with the will. The probate specialist will refer the
probate package to the OHA if it appears that the will:
(1) Is likely to be contested;
(2) Is complex or ambiguous; or
(3) Is of questionable validity.
(b) Contested claims. The probate specialist will refer the probate
package to the OHA if you:
(1) Contest a creditor claim; or
(2) Contest a claim made by a family member.
(c) Other problems. The probate specialist will be refer the probate
package to the OHA if it appears there are:
(1) Questions about family relationships;
(2) Conflict in prior probate orders;
(3) Problems with the evidence;
(4) Questions about adoption of an heir;
(5) Questions involving paternity;
(6) Presumptions of death;
(7) Rights of minor heirs that might be jeopardized;
(8) Disclaimers of interests by Indian probable heirs or
beneficiaries;
(9) Determinations of escheat under 43 CFR Sec. 4.205;
(10) Challenges to the jurisdiction of any court that issued an
order that has been used as a supporting document; or
(11) Questions concerning the decedent's domicile.
(d) Approval of settlement agreements. The probate specialist will
refer the case to the OHA if there is a settlement agreement between
heirs or beneficiaries as to the disposition of the estate.
Sec. 15.206 Is there a summary process for distributing an estate with only trust cash assets?
Yes. Unless otherwise provided by federal law or a tribal
inheritance code approved by the Secretary, a decedent's estate that
contains only trust cash assets of a value less than $5,000 not
including any interest that may have accrued after the death of the
decedent, may be summarily processed by a BIA deciding official.
(a) Within 30 days after notice under Sec. 15.203 has been sent, the
probable heirs may request a formal hearing before an ALJ to determine
the proper
[[Page 70]]
distribution of the trust cash assets. Upon notice of a request for a
formal hearing, the probate specialist will forward the probate package
to the appropriate ALJ within five days.
(b) Within 60 days after notice under Sec. 15.203 has been sent and
if the probable heirs have not requested a formal hearing with an ALJ,
the BIA deciding official to whom the probate has been referred will
assemble the probable heirs and hold an informal hearing to determine
the distribution of the trust cash assets.
(c) Within 30 days after the informal hearing, the BIA deciding
official will prepare an order in accordance with Sec. 15.302 through
Sec. 15.311.
(d) Any interested party may appeal a summary distribution decision
in accordance with subpart E of this part.
Subpart D--Probate Processing, Claims and Distributions
Sec. 15.301 What does an attorney decision maker do with the probate package?
(a) Upon receipt of the probate package, the attorney decision maker
reviews the probate package and determines whether there are issues of
fact or law of the case that indicate that the probate package should be
referred to the OHA. If any issues of fact or law that require a hearing
are apparent from the review of the case, the attorney decision maker
will refer the probate package to the appropriate ALJ within five days.
(b) Within 30 days after notice under Sec. 15.203 has been sent, the
probable heirs may request a formal hearing before an ALJ to determine
the distribution of the estate. Within five days of the receipt of
notice of a request for a formal hearing, the attorney decision maker
will forward the probate package to the appropriate ALJ.
(c) Within 120 days after the notice under Sec. 15.203 has been sent
and if the probable heirs have not requested a formal hearing with an
ALJ, the attorney decision maker will assemble the probable heirs and
hold an informal hearing to determine the distribution of the estate.
(d) Within 60 days after the informal hearing, the attorney decision
maker will issue an written order in accordance with Sec. 15.310.
Sec. 15.302 What law is used by the deciding official to determine the distribution of the trust estate?
Unless otherwise provided by federal law or a tribal inheritance
code approved by the Secretary, the law of the state where the decedent
was domiciled will determine the distribution of the estate.
Sec. 15.303 If the decedent owed me money, how do I file a claim against the estate?
(a) If you wish to make a claim against the estate of a decedent,
you must submit to us an original and two copies of an itemized
statement of the debt showing the amount of the original debt and the
remaining balance on the date of the decedent's death.
(b) The itemized statement must state whether you have filed a claim
against the decedent's non-trust assets.
(c) We must receive your claim within 60 days from the date the BIA
receives the verification of the decedent's death in Sec. 15.101 to be
included as part of the probate package.
Sec. 15.304 How does the BIA deciding official determine if a claim will be allowed and paid?
(a) The BIA deciding official may direct the payment of some or all
of the debts of the decedent after reviewing the probate package in
accordance with the standards provided at 43 CFR 4.250 (c) through (g),
and no claim prohibited by 43 CFR 4.250 will be paid.
(b) No claim will be paid from trust or restricted assets where the
BIA deciding official is aware that the decedent's non-trust estate may
be available to pay the claim.
Sec. 15.305 What claims will be paid first?
(a) The first claims to be paid, referred to as priority claims, are
paid in order of priority. The priority claims are:
(1) Funeral expenses (including the cemetery marker);
(2) Medical expenses for the last illness;
(3) Nursing home or other care facility expenses;
(4) A claim of an Indian tribe;
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(5) A claim reduced to judgment by a court of competent
jurisdiction.
(b) After payment of the priority claims, the BIA deciding official
may authorize all remaining claims, referred to as general claims.
Sec. 15.306 Can the BIA deciding official reduce the amount of claims?
The BIA deciding official has the discretion to decide that part or
all of an otherwise valid claim is unreasonable, reduce the claim to a
reasonable amount, or disallow the claim in its entirety.
(a) If a claim is reduced, the BIA deciding official will order
payment only of the reduced amount.
(b) The BIA deciding official may reduce or disallow both priority
claims and general claims.
Sec. 15.307 What if there is not enough money in the decedent's IIM account to pay all claims?
(a) If there is not enough money in the IIM account to pay all
claims, the BIA deciding official will order payment of the priority
claims first in the order identified in Sec. 15.305.
(b) If there is not enough in the IIM account to pay the priority
claims, the BIA deciding official may order payment of the priority
claims on a pro rata (reduced) basis.
(c) If less than $1,000 remains in the IIM account after payment of
priority claims is ordered, the general claims may be ordered paid on a
pro rata basis or disallowed in their entirety.
Sec. 15.308 Will the BIA use future income to pay claims?
No. The unpaid balance of any claims will not be enforceable against
the estate after the estate is closed.
Sec. 15.309 Will the BIA deciding official authorize payment of interest or penalties accruing after the date of death?
No. Interest or penalties charged against either priority or general
claims after date of death will not be paid.
Sec. 15.310 When will the BIA deciding official issue a decision on the probate?
Within 60 days after an informal hearing has been held, the BIA
deciding official will issue a written decision/order in accordance with
Sec. 15.311. Upon receipt of the decision/order, the BIA deciding
official will send all interested parties a copy of the decision/order.
Sec. 15.311 What is in the written decision/order of the BIA deciding official?
The BIA deciding official issues a written decision/order that:
(1) In intestate cases: Lists the names, relationship to the
decedent, and shares of the heirs; provides citations to the law of
descent and distribution; or the fact that the decedent died leaving no
legal heirs;
(2) In testate cases: approves or disapproves a will; interprets
provisions of the approved will; provides the names and relationship of
the beneficiaries to the decedent; describes the property each
beneficiary is to receive;
(3) Allows or disallows claims against the estate; orders the amount
of payment for all approved claims;
(4) States whether the heirs or beneficiaries are Indian or non-
Indian;
(5) Determines any rights of dower, curtesy or homestead which may
constitute a burden upon the interest of the heirs;
(6) Attaches a certified copy of the inventory of trust or
restricted lands, if any; and
(7) Advises all interested parties of their appeal rights in
accordance with subpart E of this part.
Sec. 15.312 What happens after the decision is made?
We will not pay claims, transfer title to land, or distribute trust
cash assets for 75 days after the decision/order is mailed to the
interested parties. After 75 days and if no appeal has been filed, the
following actions will take place:
(a) The LTRO will change its land title records for the trust and
restricted property in accordance with the decision/order; and
(b) The OTFM will pay claims and distribute the IIM account in
accordance with the decision/order.
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Subpart E--Appeals
Sec. 15.401 May I appeal the decision of the BIA deciding official?
You have a right to appeal the decision made by the BIA deciding
official if you are an interested party and are affected by the probate
decision.
Sec. 15.402 How do I file an appeal of the decision/order?
(a) To file an appeal of the decision/order, you may send or deliver
a signed, written statement to the BIA deciding official where the
probate package was sent that contains:
(1) The name of the decedent;
(2) A description of your relationship to the decedent;
(3) An explanation of why you are appealing; and
(4) Any errors you believe the BIA deciding official made.
(b) Within ten days from the receipt of the appeal, the BIA deciding
official will notify all other interested parties of the appeal and
forward the case to the appropriate ALJ.
Sec. 15.403 How long do I have to file an appeal?
(a) You must send or deliver your written appeal within 60 days of
the date that appears on the decision mailed to you. If you mail your
appeal, it must be postmarked within 60 days of the date of the
decision.
(b) If the 60-day appeal period is missed, you still have a right to
file a written statement with the BIA deciding official asking to have
the decision changed for one or more of the following reasons:
(1) You did not receive notice of the probate;
(2) You have obtained new evidence or information after the decision
was made; or
(3) You have evidence that was known at the time of the probate
proceeding but was not included in the probate package.
(c) After we have received your request, we will forward it to the
appropriate ALJ within ten days for action in accordance with 43 CFR
Part 4, Subpart D.
Sec. 15.404 What will happen to the estate if an appeal is filed?
The BIA deciding official will refer your appeal to the appropriate
ALJ in the same manner provided under 43 CFR Sec. 4.210. Until the
appeal has been resolved, the BIA will not distribute any of the
decedent's property or modify the land title records and the OTFM will
not pay claims or distribute any funds in the decedent's IIM account.
Sec. 15.405 How does the ALJ review a decision issued by a BIA deciding official?
The ALJ will conduct a de novo review; that is, conduct a formal
hearing on the merits of the case.
Subpart F--Information and Records
Sec. 15.501 If I have a question about a probate that has been assigned to a BIA deciding official, may I contact the deciding official directly?
In order to avoid off-the-record communications with the BIA
deciding official about your specific case that might be interpreted as
an attempt to influence final decision on the probate case, you should
direct your questions to the BIA deciding official's clerk or the
probate specialist or probate clerk who prepared your probate package.
Sec. 15.502 How can I find out the status of a probate?
You may request information about the status of an Indian probate
from any BIA agency or regional office.
Sec. 15.503 Who owns the records associated with this part?
(a) Records are the property of the United States if they:
(1) Are made or received by a tribe or tribal organization in the
conduct of a federal trust function under this part, including the
operation of a trust program pursuant to Public Law 93-638 as amended;
and
(2) Evidence the organization, functions, policies, decisions,
procedures, operations, or other activities undertaken in the
performance of a federal trust function under this part.
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(b) Records not covered by paragraph (a) of this section that are
made or received by a tribe or tribal organization in the conduct of
business with the Department of the Interior under this part are the
property of the tribe.
Sec. 15.504 How must records associated with this part be preserved?
(a) Any organization, including tribes and tribal organizations,
that have records identified in Sec. 15.503(a) must preserve the records
in accordance with approved Departmental records retention procedures
under the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 33. These
records and related records management practices and safeguards required
under the Federal Records Act are subject to inspection by the Secretary
and the Archivist of the United States.
(b) A tribe or tribal organization should preserve the records
identified in Sec. 15.503(b) for the period of time authorized by the
Archivist of the United States for similar Department of the Interior
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal
organization does not preserve records associated with its conduct of
business with the Department of the Interior under this part, the tribe
or tribal organization may be prevented from being able to adequately
document essential transactions or furnish information necessary to
protect its legal and financial rights or those of persons directly
affected by its activities.