[Title 25 CFR G]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter B - LAW AND ORDER]
[Part 11 - LAW AND ORDER ON INDIAN RESERVATIONS]
[Subpart G - Probate Proceedings]
[From the U.S. Government Publishing Office]


25INDIANS12004-04-012004-04-01falseGSubpart GINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIORLAW AND ORDERLAW AND ORDER ON INDIAN RESERVATIONS
                      Subpart G_Probate Proceedings



Sec. 11.700  Probate jurisdiction.

    The Court of Indian Offenses shall have jurisdiction to administer 
in probate the estate of a deceased Indian who, at the time of his or 
her death, was domiciled or owned real or personal property situated 
within the Indian country under the jurisdiction of the court to the 
extent that such estate consists of property which does not come within 
the jurisdiction of the Secretary of the Interior.



Sec. 11.701  Duty to present will for probate.

    Any custodian of a will shall deliver the same to the Court of 
Indian Offenses within 30 days after receipt of

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information that the maker thereof is deceased. Any custodian who fails 
to do so shall be liable for damages sustained by any person injured 
thereby.



Sec. 11.702  Proving and admitting will.

    (a) Upon initiating the probate of an estate, the will of the 
decedent shall be filed with the court. Such will may be proven and 
admitted to probate by filing an affidavit of an attesting witness which 
identifies such will as being the will which the decedent executed and 
declared to be his or her last will. If the evidence of none of the 
attesting witnesses is available, the court may allow proof of the will 
by testimony that the signature of the testator is genuine.
    (b) At any time within 90 days after a will has been admitted to 
probate, any person having an interest in the decedent's estate may 
contest the validity of such will. In the event of such contest, a 
hearing shall be held to determine the validity of such will.
    (c) Upon considering all relevant information concerning the will, 
the Court of Indian Offenses shall enter an order affirming the 
admission of such will to probate, or rejecting such will and ordering 
that the probate of the decedent's estate proceed as if the decedent had 
died intestate.



Sec. 11.703  Petition and order to probate estate.

    (a) Any person having an interest in the administration of an estate 
which is subject to the jurisdiction of the court may file a written 
petition with the court requesting that such estate be administered in 
probate.
    (b) The Court of Indian Offenses shall enter an order directing that 
the estate be probated upon finding that the decedent was an Indian who, 
at the time of his or her death, was domiciled or owned real or personal 
property situated within the Indian country under the jurisdiction of 
the court other than trust or other restricted property, that the 
decedent left an estate subject to the jurisdiction of the court, and 
that it is necessary to probate such estate.



Sec. 11.704  Appointment and duties of executor or administrator.

    (a) Upon ordering the estate to be probated, the court shall appoint 
an administrator to administer the estate of the decedent. The person 
nominated by the decedent's will, if any, to be the executor of the 
estate shall be so appointed, provided such person is willing to serve 
in such capacity.
    (b) The executor or administrator appointed by the court shall have 
the following duties and powers during the administration of the estate 
and until discharged by the court:
    (1) To send by certified mail true copies of the order to probate 
the estate and the will of the decedent admitted to probate by such 
order, if any, to each heir, devisee and legatee of the decedent, at 
their last known address, to the governing body of the tribe or tribes 
occupying the Indian country over which the court has jurisdiction, and 
to the agency superintendent;
    (2) To preserve and protect the decedent's property within the 
estate and the heirs, so far as is possible;
    (3) To investigate promptly all claims against the decedent's estate 
and determine their validity;
    (4) To cause a written inventory of all the decedent's property 
within the estate to be prepared promptly with each article or item 
being separately set forth and cause such property to be exhibited to 
and appraised by an appraiser, and the inventory and appraisal thereof 
to be filed with the court;
    (5) To give promptly all persons entitled thereto such notice as is 
required under these proceedings;
    (6) To account for all property within the estate which may come 
into his or her possession or control, and to maintain accurate records 
of all income received and disbursements made during the course of the 
administration.



Sec. 11.705  Removal of executor or administrator.

    The Court of Indian Offenses may order the executor or administrator 
to show cause why he or she should not be discharged, and may discharge 
the executor or administrator for failure, neglect or improper 
performance of his or her duties.

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Sec. 11.706  Appointment and duties of appraiser.

    (a) Upon ordering an estate to be probated, the court shall appoint 
a disinterested and competent person as an appraiser to appraise all of 
the decedent's real and personal property within the estate.
    (b) It shall be the duty of the appraiser to appraise separately the 
true cash value of each article or item of property within the estate, 
including debts due the decedent, and to indicate the appraised value of 
each such article or item of property set forth in the inventory of the 
estate and to certify such appraisal by subscribing his or her name to 
the inventory and appraisal.



Sec. 11.707  Claims against estate.

    (a) Creditors of the estate or those having a claim against the 
decedent shall file their claim with the clerk of the court or with the 
executor or administrator within 60 days from official notice of the 
appointment of the executor or administrator published locally in the 
press or posting of signs at the tribal and agency offices, giving 
appropriate notice for the filing of claims.
    (b) The executor or administrator shall examine all claims within 90 
days of his or her appointment and notify the claimant whether his or 
her claim is accepted or rejected. If the claimant is notified of 
rejection, he or she may request a hearing before the court by filing a 
petition requesting such hearing within 30 days following the notice of 
rejection.



Sec. 11.708  Sale of property.

    After filing the inventory and appraisal, the executor or 
administrator may petition the court for authority to sell personal 
property of the estate for purposes of paying the expenses of last 
illness and burial expenses, expenses of administration, claims, if any, 
against the estate, and for the purpose of distribution. If, in the 
court's judgment, such sale is in the best interest of the estate, the 
court shall order such sale and prescribe the terms upon which the 
property shall be sold.



Sec. 11.709  Final account.

    (a) When the affairs of an estate have been fully administered, the 
executor or administrator shall file a final account with the court, 
verified by his or her oath. Such final account shall affirmatively set 
forth:
    (1) That all claims against the estate have been paid, except as 
shown, and that the estate has adequate unexpended and unappropriated 
funds to fully pay such remaining claims;
    (2) The amount of money received and expended by him or her, from 
whom received and to whom paid, referring to the vouchers for each of 
such payments;
    (3) That there is nothing further to be done in the administration 
of the estate except as shown in the final account;
    (4) The remaining assets of the estate, including unexpended and 
unappropriated money, at the time of filing the final account;
    (5) The proposed determination of heirs and indicate the names, 
ages, addresses and relationship to the decedent of each distributee and 
the proposed distributive share and value thereof each heir, devisee or 
legatee is to receive; and
    (6) A petition that the court set a date for conducting a hearing to 
approve the final account, to determine the heirs, devisees and legatees 
of the decedent and the distributive share each distributee is to 
receive.



Sec. 11.710  Determination of the court.

    At the time set for hearing upon the final account, the Court of 
Indian Offenses shall proceed to examine all evidence relating to the 
distribution of the decedent's estate, and consider objections to the 
final account which may have been filed by any heir, devisee, legatee, 
or other person having an interest in the distribution of the estate. 
Upon conclusion of the hearing, the court shall enter an order:
    (a) Providing for payment of approved claims;
    (b) Determining the decedent's heirs, devisees and legatees, 
indicating the names, ages and addresses of each, and the distributive 
share of the remaining estate which each distributee is to receive; and
    (c) Directing the administrator or executor to distribute such 
distributive share to those entitled thereto.

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Sec. 11.711  Descent and distribution.

    (a) The court shall distribute the estate according to the terms of 
the will of the decedent which has been admitted to probate.
    (b) If the decedent died intestate or having left a will which has 
been rejected by the court, the estate shall be distributed as follows:
    (1) According to the laws and customs of the tribe if such laws and 
customs are proved; or
    (2) According to state law absent the existence of tribal laws or 
customs.
    (c) If no person takes under the above subsections, the estate shall 
escheat to the tribe.



Sec. 11.712  Closing estate.

    (a) Upon finding that the estate has been fully administered and is 
in a condition to be closed, the court shall enter an order closing the 
estate and discharging the executor or administrator.
    (b) If an order closing the estate has not been entered by the end 
of nine months following appointment of executor or administrator, the 
executor or administrator shall file a written report with the court 
stating the reasons why the estate has not been closed.



Sec. 11.713  Small estates.

    An estate having an appraised value which does not exceed $2,000.00 
and which is to be inherited by a surviving spouse and/or minor children 
of the deceased may, upon petition of the executor or administrator, and 
a hearing before the court, be distributed without administration to 
those entitled thereto, upon which the estate shall be closed.