[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Proposed Rules]
[Pages 1037-1063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28306]


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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: Proposed rule.

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SUMMARY: The Department of the Interior (Department) is updating 
regulations governing probate of property that the United States holds 
in trust or restricted status for American Indians. Since the 
regulations were last revised in 2008, the Department identified 
opportunities for improving the probate process. These proposed 
revisions would 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, streamlining notice to co-owners who are potential 
heirs while adding electronic notice to all by website posting, and 
specifying which reasons justify reopening of closed probate estates. 
The proposed revisions would 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.

DATES: Submit written comments by March 8, 2021. A Tribal consultation 
session will be held on February 9, 2021, at 2 p.m. Eastern Time and a 
public hearing will be held on February 11, 2021, at 2 p.m. Eastern 
Time (see Section V in the SUPPLEMENTARY INFORMATION for details).

ADDRESSES: You may submit comments by any one of the following methods:
     Federal Rulemaking Portal: www.regulations.gov. The rule 
is listed under Agency Docket Number DOI-2019-0001.
     Email: Tribes may email comments to: [email protected]. 
All others should email their comments to: [email protected].
     Mail or Courier: Ms. Elizabeth Appel, Office of Regulatory 
Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C 
Street NW, Mail Stop 4660 MIB, Washington, DC 20240.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking. 
Locations of the Tribal consultation session and public hearing are 
listed in Section V of this rule.

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
III. Proposed Resolution to Issues Identified in ANPRM and Response 
to Comments on the ANPRM
    A. Issue 1: Gaps in AIPRA Intestacy Distribution
    B. Issue 2: Overly Burdensome ``Purchase at Probate'' Process
    C. Issue 3: Notice to Co-Owners Who Are Potential Heirs
    D. Issue 4: Insufficient Trust Funds for Funeral Services
    E. Issue 5: No Regulatory Process for Exercise of ``Tribal 
Purchase'' Option
    F. Issue 6: Minor Estate Inventory Corrections
    G. Issue 7: Judicial Authority
    H. Issue 8: Indian Status Determinations
    I. Issue 9: Increase Opportunities To Use ``Renunciation'' To 
Maintain Trust Status of Property
    J. Issue 10: Presumption of Death
    K. Issue 11: Reopening Closed Probate Cases
    L. Issue 12: Streamlining Process for Small Estates
    M. Issue 13: Descent of Off-Reservation Lands
IV. Overview of Proposed Rule
    A. Summary of Proposed Changes
    B. Crosswalk of Current Regulation to Proposed Regulation
V. Tribal Consultation and Public Hearing
VI. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Reducing Regulations and Controlling Regulatory Costs (E.O. 
13771)
    C. Regulatory Flexibility Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Act
    F. Takings (E.O. 12630)
    G. Federalism (E.O. 13132)
    H. Civil Justice Reform (E.O. 12988)
    I. Consultation With Indian Tribes (E.O. 13175)
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Effects on the Energy Supply (E.O. 13211)
    M. Clarity of This Regulation
    N. Public Availability of Comments

[[Page 1038]]

I. Executive Summary

    This proposed rule would update regulations that address how OHA 
probates property that the United States holds in trust or restricted 
status for American Indians. In October 2019, the Department sought 
input on a number of issues in the existing probate regulations through 
an advance notice of proposed rulemaking (ANPRM). 84 FR 58353 (October 
31, 2019). The Department reviewed and considered the input and 
developed this proposed rule to improve the probate process. These 
proposed revisions would 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, streamlining notice 
to co-owners who are potential heirs, and specifying which reasons 
justify reopening of closed probate estates. The proposed revisions 
would 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.

II. Background

    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. More 
recently, in an effort to streamline the process and benefit Indian 
heirs and devisees, the Department identified current 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). The Department 
received six comment submissions in response to the ANPRM and addresses 
them, issue by issue, in Section III. Section III also discusses how 
the proposed rule addresses issues identified in the ANPRM. Through the 
process of evaluating the responses and further examining the current 
regulations, the Department identified additional changes that could 
improve current processes, which the proposed rule also incorporates. 
Section IV provides an overview of all the changes this proposed rule 
would make to the current regulations.

III. Proposed Resolution to Issues Identified in ANPRM and Response to 
Comments on the ANPRM

A. Issue 1: Gaps in AIPRA Intestacy Distribution

    AIPRA sets out how a decedent's estate should be distributed when a 
decedent dies without a will (i.e., intestate) at 25 U.S.C. 2206(a), 
but fails to account for how trust personalty (including trust funds) 
should be distributed under two circumstances when there are no 
eligible family heirs under AIPRA: (1) The estate contains trust 
personalty but no trust real property; and (2) more than one Tribe has 
jurisdiction over trust real property in the estate. No comments were 
received on this issue in response to the ANPRM. The proposed rule 
addresses this issue by adding a new Sec.  30.507 to clarify how trust 
personalty is distributed in these circumstances.

B. Issue 2: Overly Burdensome ``Purchase at Probate'' Process

    AIPRA authorizes certain ``eligible purchasers'' to purchase trust 
and restricted interests in a parcel of land in the decedent's estate 
under certain circumstances. See 25 U.S.C 2206(o). The current 
regulations set out this ``purchase at probate'' process at 43 CFR part 
30, subpart G, but the process has proven to be unwieldy because it 
requires the estate to be kept open indefinitely during the purchase at 
probate process and requires completion of the purchase at probate 
before issuing the final probate decision. This in turn requires OHA to 
make provisional determinations of heirs or devisees (creating the 
possibility of having to re-do the already-lengthy process). The 
proposed rule addresses this issue by overhauling the purchase at 
probate process in a manner that eliminates the need to keep probate 
cases open while providing certainty as to who the heirs and devisees 
are and what interests they have consented to selling before proceeding 
with the purchase at probate.
    The Department received comments on two aspects of the purchase at 
probate issue, as follows:
1. Notice to Co-Owners of a Purchase at Probate
    Current regulations provide that OHA will provide notice that it 
has received a written request to purchase at probate to certain 
parties by mail, and other parties by posting. See Sec.  30.165. Co-
owners of property in the estate are eligible purchasers, and under the 
current regulations, receive notice of a request to purchase at probate 
through a posted notice. The ANPRM suggested instead requiring notice 
of a request to purchase at probate by mail to any co-owners who have 
submitted prior notice to the BIA that they want to receive notice of 
probates involving specified allotments.
    The proposed rule's approach to purchase at probate requires OHA to 
provide notice of a pending purchase request in the probate decision. 
See proposed Sec.  30.408. The current regulations include a provision 
requiring OHA to mail or deliver notice of the probate decision to 
interested parties. See Sec.  30.237. That provision is unchanged by 
the proposed rule, so interested parties will receive notice of the 
purchase at probate request in the probate decision; however, the 
proposed rule revises the definition of ``interested party'' to exclude 
anyone who may or will inherit solely as a co-owner of an allotment. 
See proposed Sec.  30.101. Another proposed revision allows anyone who 
may or will inherit solely as a co-owner of an allotment to obtain 
notice by filing a request for such notice with regard to any allotment 
they identify. See proposed Sec.  30.114
    The proposed rule would also eliminate posting of notices of 
purchase requests because posting adds significant time to the purchase 
process, while resulting in few, if any, co-owner requests to purchase. 
(Note, however, that notices of the hearing are still posted, so any 
interested co-owner may choose to participate in the hearing). The 
revisions would work to reserve notice to co-owners only for situations 
in which a co-owner has requested to receive notice, while continuing 
to meet due process requirements and reducing complexities in the 
probate process.
    Comment: The revision would eliminate the right of eligible 
purchasers

[[Page 1039]]

(co-owners) to notice when OHA receives a request to purchase at 
probate and would place the onus on the co-owners to provide notice 
that they wish to be told of purchase offers.
    Response: Co-owners may purchase interests in the allotment at any 
time: Before probate (with the consent of the interest owner), during 
probate (through purchase at probate, only if consent is given by the 
heir or devisee who would otherwise inherit the interest and all 
requirements are met to permit a judge to approve the purchase at 
probate), or after probate (with the consent of the new interest 
owner). Given that the co-owner may purchase interests in the allotment 
at any time, and must always obtain the consent of another party to do 
so, removing notice by posting of another purchase offer during probate 
does not harm the co-owner in any way. If the co-owner would like to 
receive notice of a purchase at probate offer on the allotment, the co-
owner may request such notice and receive it directly, by mail.
    Comment: OHA must be required to notify co-owners by mail of an 
open period for registering their desire to be notified of a purchase 
at probate offer.
    Response: Establishing an open period for registering a desire to 
be notified would unnecessarily limit the time for co-owners to state 
their desire to be notified. At any time, co-owners may request to be 
notified in writing in the event any request to purchase is submitted 
for the property. Additionally, requiring notification to co-owners by 
mail of an open period for registering their desire to be notified of a 
purchase at probate offer would make the process less, rather than 
more, efficient.
2. Elimination of Purchase at Probate of Minerals-Only Interests
    Allotments contain both surface interests and minerals interests. 
In some circumstances, the surface interests and minerals interests 
have been severed from each other. As a result, a decedent's estate may 
contain real property interests that are referred to as ``minerals-
only'' interests. Purchasers sometimes seek to purchase those minerals-
only interests from the estate. The current probate regulations state 
that fair market value will be determined by an appraisal or valuation 
method developed by the Secretary. See Sec.  30.264. The Department is 
able to provide the fair market value of a real property interest only 
via an appraisal. The Department is unable to perform appraisals for 
minerals-only interests at this time.
    Comment: Elimination of purchase at probate of mineral interests-
only interests is adverse to and limits the rights of Tribes. Consult 
with Tribes and explain why valuation does not provide fair market 
value of minerals-only interest and why the ``OVS valuation'' cannot be 
the basis for an appraisal. Instead of eliminating purchase at probate, 
regulations could address whatever issues may have been identified with 
the OVS-DME valuations.
    Response: There is no statutory requirement for approval of a 
purchase at probate or providing anyone with a right to purchase at 
probate; rather, a judge decides in any given case whether to allow a 
purchase at probate. In cases where a judge decides to allow a purchase 
at probate, the statute requires that the judge ensure the purchase is 
for at least fair market value. In cases in which the mineral and 
surface estates are not separated, appraisals of the combined surface 
and mineral estate are relied upon for fair market value. In cases 
where there is no surface estate, the ``OVS valuations'' do not reflect 
the fair market value of the real property. Those valuations nearly 
always estimate the minerals-only interests at zero dollars; therefore, 
the proposed rule would provide that no interest of a minerals-only 
property may be purchased at probate on the basis of the value of the 
minerals themselves. The proposed rule does not entirely foreclose the 
opportunity to purchase a minerals-only interest at probate, however. 
The proposed rule would provide that purchase of a minerals-only real 
property interest may be considered for purchase at probate if 
sufficient evidence of the fair market value of the real property 
interest (rather than the value of the minerals themselves) is 
submitted.

C. Issue 3: Notice to Co-Owners Who Are Potential Heirs

    The current regulations require OHA to provide all interested 
parties--including co-owners, when they are potential heirs--with 
mailed notice of probate proceedings. See Sec.  30.114. Co-owners may 
be potential heirs in 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, then a 
surviving co-owner of a trust or restricted interest in the allotment 
may potentially be an ``heir'' of last resort. The ANPRM suggested 
revising the regulations to state that potential heirs who may inherit 
solely based on their status as co-owners will not receive mailed 
notice of a probate proceeding, unless they have previously filed a 
request for notice with BIA or OHA. This proposed rule includes that 
provision at Sec.  30.114 and provides that public notice will continue 
to be posted.
    Comment: Owners are entitled to due process in the form of notice 
sent by first class mail, but the ANPRM would instead require potential 
heirs to notify BIA of their wish to be notified when they become a 
potential heir.
    Response: This comment suggests a concern that a co-owner may be 
deprived of an opportunity to testify at hearing about his/her right to 
receive a share of the decedent's estate if the co-owner does not 
receive notice of the hearing by mail. Co-owners are only potential 
heirs in the circumstance in which there are no eligible family heirs 
and no Tribe with jurisdiction. Co-owners rarely know the decedent or 
decedent's family and therefore rarely have information to assist the 
judge with the determination of heirs. The only relevant testimony of 
most co-owners would involve the legal question as to whether a Tribe 
has jurisdiction over property. If a co-owner has the resources to 
develop and present a legal argument as to whether a Tribe has 
jurisdiction over a property, it should not be a burden on that co-
owner to take the step of notifying the BIA of a desire to be notified 
by mail of probates involving the property. Additionally, the proposed 
rule provides that notice will be posted on OHA's website, and still 
provides for physical posting of notice of a probate hearing, unless 
physical posting was not possible due to one of the listed 
circumstances.
    Comment: The proposed change could result in unconstitutional 
takings and extinguishes the fiduciary responsibility of the Department 
to co-owners.
    Response: Providing notice of a probate hearing through posting in 
lieu of mailing does not result in any takings because the co-owner is 
not at risk of losing any property interest. While the co-owner has an 
ownership interest in the allotment, the co-owner does not own the 
specific fractional property interest being probated. If the co-owner 
will be inheriting a share of that property interest (as the only 
eligible heir because there are no other heirs and there is not a Tribe 
with jurisdiction over the allotment), then the co-owner will receive 
the interest through the inheritance. A co-owner may have the option to 
purchase the interest--something co-owners are free to pursue at any 
time outside of the probate context--or the fractional interest the co-
owner already owns may slightly increase. There are limited situations 
in

[[Page 1040]]

which co-owners may be considered potential heirs at the start of a 
case, but the property interest being probated ends up being 
distributed to another person or entity. For example, a will may be 
submitted at the hearing, a person may credibly claim to be the 
decedent's child and heir, or the judge may rule that a Tribe does in 
fact have jurisdiction over an off-reservation allotment. In those 
situations, the judge retains the discretion, on a case-by-case basis, 
to mail notices and decisions to all affected co-owners. For these 
reasons, the proposed rule continues to take the approach of notifying 
most co-owners by posting, rather than mail. (For other changes to 
posting in general, please see Section IV.A. ``Summary of Proposed 
Changes'' below). If concerns remain about notice to co-owners, the 
Department requests additional information to identify the concern 
underlying this comment, given that the co-owner will not be losing any 
rights.

D. Issue 4: Insufficient Trust Funds for Funeral Services

    The current regulations allow whoever is responsible for making the 
funeral arrangements on behalf of the decedent's family to obtain up to 
$1,000 from the decedent's Individual Indian Money (IIM) account to pay 
for funeral services. See 25 CFR 15.301. Due to the passage of time, 
this amount has proven to be insufficient. In addition, the current 
regulations require a balance of at least $2,500 in the decedent's IIM 
account at the date of death in order for individuals to request the 
$1,000 distribution. The Department sought, but did not receive, 
comments on this ANPRM issue. The proposed rule would allow individuals 
to request up to $5,000 from the decedent's IIM account to pay for 
funeral services and would eliminate the requirement for the IIM 
account to have a specific balance as of the date of death. This change 
would recognize the increase in the cost of funeral services since the 
$1,000 limit was put in place, and would help to ensure that family 
members are able to pay such costs immediately.

E. Issue 5: No Regulatory Process for Exercise of ``Tribal Purchase'' 
Option

    The ANPRM highlighted that there are currently no regulatory 
provisions implementing the AIPRA authority for a Tribe with 
jurisdiction to purchase an interest in trust or restricted land if the 
owner of the interest devises it to a non-Indian. See 25 U.S.C. 
2205(c)(1)(A). The Department did not receive any comments on this 
section, and is not addressing it in this proposed rule, but plans to a 
consider addressing it in a future rulemaking.

F. Issue 6: Minor Estate Inventory Corrections

    At times, BIA determines after a probate decision has been issued 
that trust or restricted property belonging to a decedent was either 
omitted from, or incorrectly included in, the inventory of an estate. 
Under the current regulations, such circumstances require multiple 
orders, including a modification order, from a judge. The current 
regulations also require that the modification order be appealable to 
the Interior Board of Indian Appeals (IBIA). As a result, it can take 
significant time to make minor estate inventory corrections to include 
omitted property.
    The ANPRM suggested certain revisions to improve probate process 
efficiency and reduce the amount of time for corrections of estate 
inventories, by authorizing BIA to make minor estate inventory 
corrections or to streamline the process that OHA follows before 
issuing an inventory modification order. One such streamlining measure 
could involve an heir or devisee being allowed to--prior to the 
exercise of an IBIA appeal option--request that an OHA judge reconsider 
a modification order, thus reducing the number of cases that might 
result in such an IBIA appeal.
    Comment: Do not allow BIA to make inventory corrections because the 
current regulations protect rights that were adjudicated through the 
original probate and the finality of a probate decision provides 
clarity and certainty. This change could result in a significant 
increase of OHA caseload as eligible parties appeal erroneous or 
conflicted decisions. It would be impossible to ensure equal standing 
for co-owners seeking redress from unilateral modifications. Also, 
``minor'' and ``corrections'' are undefined, and any corrections must 
be treated as a rehearing or reopening subject to advance notice to 
existing co-owners, and no administrative action (e.g., distributing 
revenue to prospective new co-owner) should be imposed by the agency 
pending final appeal decision..
    Response: The proposed rule addresses the concerns expressed in the 
comments about BIA making inventory corrections by allowing BIA to 
petition OHA for a distribution order, but leaving the decision as to 
whether and how changes to an estate inventory affect distribution to 
the judge. The proposed rule would add a new section that specifically 
addresses typographical and other non-substantive errors for correction 
by OHA. See proposed Sec.  30.250. Proposed revisions also address how 
OHA may direct distribution of property that BIA identifies as 
belonging to an estate after a probate decision is issued, and how OHA 
may address property that BIA identifies as having been incorrectly 
included in an estate. Anyone who is adversely affected may challenge 
the OHA distribution order by filing an appeal through a 
reconsideration process, which is designed to be more expeditious than 
an appeal to IBIA. See proposed Sec. Sec.  30.251-30.253.

G. Issue 7: Judicial Authority

    The ANPRM suggested adding provisions to the regulations to 
explicitly allow the OHA judge to order both medical records and vital 
records from State and local entities as needed, and to issue 
interrogatories in cases involving will contests.
    Comment: Judges should be provided additional discovery powers to 
obtain basic facts about the cases.
    Response: The Department has determined that a more comprehensive 
overhaul of judicial authority is required, and will consider 
addressing these issues in a future rulemaking.

H. Issue 8: Indian Status Determinations

    Under current probate regulations, a probate decision must 
determine the Indian status of every heir or devisee. But a 
determination of Indian status is often not necessary for a probate 
decision to be made. The ANPRM would require the probate decisions to 
determine the Indian status of an heir or devisee only when such a 
determination is necessary; for example, the determination of Indian 
status may be necessary in AIPRA cases involving a will and where the 
devisee is not a lineal descendant of the decedent.
    Comment: Require an Indian status determination only for those 
individuals who stand to inherit as an heir or devisee.
    Response: The proposed rule would limit determinations of Indian 
status to those situations where such determinations are necessary for 
a probate decision to be made.

I. Issue 9: Increase Opportunities To Use ``Renunciation'' To Maintain 
Trust Status of Property

    The current regulations allow an heir or devisee to renounce an 
inherited or devised interest in trust or restricted property, but 
provide that the renunciation must take place before the probate 
decision is made. (See 43 CFR part 30, subpart H). Once a probate 
decision is made, renunciation is not allowed. The current regulations 
allow

[[Page 1041]]

petitions for rehearing to be filed within 30 days of a probate 
decision being made but fail to list renunciation among the bases for 
which an OHA judge may grant a rehearing. The ANPRM noted that, where 
renunciations are available at later stages, such as during a 
rehearing, then individuals could renounce to prevent property from 
going out of trust. The Department did not receive any comments on this 
issue. The proposed rule revises the renunciation provisions to allow 
for renunciations at three additional times after the issuance of a 
probate decision: Within 30 days from the mailing date of the decision; 
before the entry of an order on rehearing, if a petition for rehearing 
is pending; or within 30 days of the mailing date of the distribution 
order that provides the heir or devisee with additional property.

J. Issue 10: Presumption of Death

    The probate process authorizes OHA--in some circumstances--to 
determine whether a person is deceased. Proof of death is not always 
available. To facilitate the decision-making process, the current 
regulations allow OHA to apply a presumption of death. The current rule 
is that such a presumption may be made if there has been no contact 
with the absent person for the last six years, dating back from the 
time of the hearing. The hearing does not always occur until well after 
a probate file is sent by BIA to OHA, so the ANPRM suggested revising 
the provisions in 43 CFR 30.124(b)(2), keeping the six-year rule but 
having it date back from the last date of known contact with the absent 
person. As needed for practicality, these revisions could include 
exceptions and/or rules about what ``known contact'' entails and/or how 
``known contact'' is shown.
    Comment: Exclude word-of-mouth and social media postings from 
acceptable forms of contact, and limit to tamper-proof forms of written 
or timestamped recorded media that conform to requirement for ``clear 
and convincing evidence'' found at 43 CFR 30.124.
    Response: The proposed rule does not exclude word-of-mouth and 
social media postings or otherwise limit what evidence of contact can 
be presented because it is the judge's role to weigh the evidence and 
determine its credibility, as the judge would with any other evidence. 
The proposed rule lists specific evidence that will allow a judge to 
presume that a missing person has died and presume the date of death, 
including specific evidence showing that the person has been absent for 
at least 6 years. The proposed rule also specifies that the presumption 
may 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.

K. Issue 11: Reopening Closed Probate Cases

    In separate areas of the current regulations, a party may file a 
petition for rehearing or a petition for reopening (see 43 CFR 30.240 
and 30.125). A petition for rehearing must be filed within 30 days of 
the probate decision and the requirements for presenting new evidence 
are specifically laid out. Petitions for reopening may be filed much 
later with few limitations on the reasons for a reopening. The ANPRM 
suggested revising the current regulations to: (1) Limit the ability of 
a party who did not use the opportunity to participate in an initial 
probate proceeding to later file a petition for reopening; and (2) in 
both rehearing and reopening proceedings, make clear the circumstances 
under which new evidence may be presented.
    Comment: Limit the number of times an interested party or BIA may 
petition for reopening.
    Response: The proposed rule includes limits on re-petitioning to 
ensure finality of probate proceedings.
    Comment: Reject limitations on petitions to reopen because 
individuals fail to participate in probates for legitimate reasons. 
Probate judges already have discretion to deny petitions to reopen 
where they see fit.
    Response: It is true that probate judges already have discretion to 
deny petitions to reopen where they see fit, but probate judges will 
usually deny petitions to reopen where an individual had the 
opportunity to participate in an initial probate proceeding and failed 
to avail himself or herself of that opportunity. If the individual 
received notice of the opportunity to participate in the probate 
proceeding, it is incumbent upon that individual to participate in the 
proceeding, notify OHA, or seek a rehearing within 30 days. If, as the 
commenter notes, the individual had a ``legitimate reason'' for not 
participating, the individual should contact the court at that time or 
seek a rehearing within 30 days, rather than wait until after the 
probate decision has become final. At some point, there needs to be 
finality in each probate proceeding, and subjecting probate proceedings 
to being reopened undermines that finality. As such, reopening should 
be reserved for only the most necessary of circumstances.
    Comment: The rules are clear enough, but the agency manipulates or 
ignores the rules; clarify that the Department may not act on its own 
volition.
    Response: The rules are intended to establish consistency and 
predictability, but judges have the flexibility to make judgments 
within the framework of the rules.

L. Issue 12: Streamlining Process for Small Estates

    Current regulations require estates with trust property or trust 
funds in excess of $5,000 to be adjudicated by an OHA decision maker 
through the formal probate process involving a hearing: a process that 
can be perceived as disproportionately time consuming for small 
estates. Current regulations also establish a summary probate process--
which allows for disposition of the estate without a formal hearing, by 
a judge or ADM, based on the probate file alone--if the estate involves 
only cash of $5,000 or less on the date of death. The ANPRM suggested 
increasing the scope of estates that are subject to OHA's summary 
process, which does not require a formal hearing (see 43 CFR part 30, 
subpart I), and/or determine what would be considered a small estate 
and, for estates within that definition, create a streamlined 
distribution scheme for such estates.
    Comment: Reject the change because eliminating hearings for simple 
estates would undermine due process.
    Response: Eliminating hearings for small estates that include only 
minimal funds and no land or trust personalty promotes due process by 
allowing faster resolution of pending probate cases. However, in 
recognition of this commenter's concern regarding limiting hearings, 
the proposed rule takes a different approach from that suggested in the 
ANPRM. Rather than increasing the scope of estates subject to summary 
probate proceedings as suggested in the ANPRM, the proposed rule limits 
the estates that are subject to summary probate proceedings by lowering 
the dollar threshold (from $5,000 to $300), while further streamlining 
the summary probate process to allow estates to be handled more 
efficiently in the summary probate process. Like the current 
regulations, the proposed summary probate process allows for 
disposition of an estate by a judge or ADM based on the probate file, 
without a hearing. The proposal further streamlines the process by 
obviating the need for notice prior to issuance of the probate decision 
through elimination of the option to convert the proceedings to formal 
probate proceedings, elimination of consideration of claims against the

[[Page 1042]]

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 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 the decision in a summary 
to file a request for review, but streamlines the process by allowing 
for reconsideration rather than de novo review.
    Comment: Develop, in consultation with Tribes, a separate process 
for ``micro estates'' where value to be distributed is $100 or less, so 
value can be distributed in less than 60 days. Where multiple heirs, 
allow heirs to relinquish their interests with a one-page notarized 
attestation.
    Response: The proposed rule revises summary probate proceeding 
provisions to establish an expedited process for small estates 
consisting only of funds of $300 or less. This threshold amount was 
identified as a natural dividing point based on data reflecting the 
amounts of probate estates.
    Comment: Object to change based on sense of equal treatment. If 
changes are made, at a minimum, co-owners and potential heirs should be 
granted sufficient notice that this provision may be invoked only with 
an opportunity to object.
    Response: As proposed, all interested parties will receive notice 
of the decision and anyone adversely affected will have the opportunity 
to seek review.

M. Issue 13: Descent of Off-Reservation Lands

    The ANPRM noted that the current regulations do not address the 
provision of AIPRA regarding descent of interests in trust or 
restricted lands that are located outside the boundaries of an Indian 
reservation and are not subject to the jurisdiction of a Tribe. See 25 
U.S.C. 2206(d)(2). The Department received no comments on this 
provision and will consider addressing this issue in a future 
rulemaking.

IV. Overview of Proposed Rule

    The Department is proposing revisions to existing regulations that 
are unclear and/or create uncertainty and may lengthen the time it 
takes to process probates. The proposed rule aims to streamline probate 
processes, while providing due process, so that probate cases may be 
closed and distribution to heirs and devisees may occur more quickly. 
Closing the probate case sooner allows for distribution of property 
more quickly and creates certainty in the determination of the heirs 
and devisees. 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 proposed rule, 
aims to provide certainty for families and future generations more 
expeditiously.

A. Summary of Proposed Changes

    One way in which the proposed rule would accomplish the goal of 
streamlining the probate process is by overhauling the process and 
criteria for summary probate proceedings, to establish a process for 
very small estates: 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. Other revisions that will help to expedite resolution 
of probate cases include:
     A revision so that the judge does not need to determine 
the status of eligible heirs or devisees as Indian in every probate 
case, but only those in which that information is necessary;
     A revision to eliminate the need to provide mailed notice 
to co-owners who would inherit only because of their status as co-
owners if there were no eligible family heirs and no Tribe with 
jurisdiction;
     A new provision allowing OHA to issue a correction order 
to correct non-substantive and typographical errors without reopening 
the probate case;
     Revised processes for when it is discovered after issuance 
of a decision in a probate case that additional property must be added 
to an estate inventory or that property was incorrectly included in the 
estate inventory, including a process for challenging these types of 
decisions through reconsideration rather than appeal to the IBIA;
     Revisions to allow heirs and devisees to renounce their 
interests at hearings (having their written declarations acknowledged 
before a judge) and allowing 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 proposed rule also includes revisions 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 and physically post notice (unless physical posting is not 
possible due to one of the listed circumstances). It also proposes to 
eliminate physical posting for a hearing that will not be held in 
person and proposes to provide better targeted locations for physical 
posting.
    The current rule requires posting at the agency with jurisdiction 
over the trust or restricted parcels in the estate and at five or more 
conspicuous places in the vicinity of the designated place of hearing 
(which is generally located in the area of the identified heirs or 
devisees). The proposed rule would require OHA to post on its website, 
allowing notice to be available to all. These changes would accommodate 
the increased use of telephonic and other alternatives to in-person 
hearings, which are occurring and are anticipated 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 proposed rule retains provisions for some 
physical postings in addition to mailed notice and the website posting. 
Specifically, the proposed rule allows for physical posting at the home 
agency and at the agency with jurisdiction over the trust or restricted 
parcels in the estate, if different from the home agency, but reduces 
from five to one the number of conspicuous places in the vicinity of 
the hearing that notice must be physically posted. The proposed rule 
further clarifies that if there is not an in-person hearing, then the 
posting in the conspicuous place in the vicinity of the hearing is not 
required. The proposed rule would also establish that OHA may proceed 
with a hearing even if physical posting was not possible due to one of 
the listed circumstances. The Department specifically invites comment 
on these changes, including:
     Whether physical posting is effective in actually 
providing notice to potential parties who do not receive mailed notice;
     Whether locations for posting other than the ones 
presented in the proposed rule would be more effective;
     Whether posting would be more effective using any 
method(s) other than, or in addition to, those presented in the 
proposed rule;
     Whether there should be physical postings in more than one 
conspicuous place in the vicinity of in-person hearings (and if so, how 
many); and

[[Page 1043]]

     Whether OHA should proceed with scheduling a hearing when 
it is only able to mail notices and post notices on its website, but 
the physical posting of additional notices is ``not possible'' (i.e., 
the agency office is closed or inaccessible or extenuating 
circumstances exist preventing personnel from physically posting) and 
whether the definition of ``extenuating circumstances'' is appropriate.
    The proposed rule would also clarify terminology and state 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 proposed rule would 
delineate:
     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.
    As mentioned in the prior section, the proposed rule would also 
overhaul 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. The proposed rule would 
instead sequence 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. Crosswalk of Current Regulation to Proposed Regulation

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

------------------------------------------------------------------------
                                                    Summary of proposed
        Current Sec.             Proposed Sec.            changes
------------------------------------------------------------------------
15.202 What items must the      15.202 What items  Redesignates
 agency include in the probate   must the agency    paragraphs and adds
 file?.                          include in the     a new paragraph (b)
                                 probate file?.     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.
15.301 May I receive funds      15.301 May I       Increases the amount
 from the decedent's IIM         receive funds      that may be
 account for funeral services?.  from the           requested and
                                 decedent's IIM     approved for
                                 account for        distribution from a
                                 funeral            decedent's IIM
                                 services?.         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.
N/A...........................  15.404 What        New section.
                                 happens if BIA
                                 identifies
                                 additional
                                 property of a
                                 decedent after
                                 the probate
                                 decision is
                                 issued?.

[[Page 1044]]

 
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:

------------------------------------------------------------------------
                                                  Summary of proposed
    Current Sec.           Proposed Sec.                changes
------------------------------------------------------------------------
30.100 How do I use     30.100 How do I use    Updates citations (no
 this part?              this part?             substantive change).
30.101 What             30.101 What            Deletes definitions of
 definitions do I need   definitions do I       ``BLM'' and ``de novo
 to know?                need to know?          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,
                                                ``Interested party'' to
                                                exclude those who may
                                                inherit solely as a co-
                                                owner, and ``summary
                                                probate proceeding'' to
                                                reflect the new approach
                                                to these proceedings.
                                               Adds definitions for
                                                ``distribution order,''
                                                ``extenuating
                                                circumstances,'' ``home
                                                agency,'' ``joint
                                                tenancy,'' ``lineal
                                                descendant,'' ``order,''
                                                ``Petition to Complete
                                                Purchase at Probate,''
                                                and ``tenants in
                                                common.''
30.114 Will I receive   30.114 Will I receive  Deletes provisions in
 notice of the probate   notice of the          current paragraph (b)
 proceeding?             probate proceeding?    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.
                                               Revises paragraph (b) to
                                                provide that potential
                                                heirs who may inherit
                                                solely as co-owners of
                                                an allotment will not
                                                receive actual notice
                                                unless they have
                                                previously filed a
                                                request for notice with
                                                BIA or OHA.
30.123 Will the judge   30.123 Will the judge  Adds ``if relevant'' so
 determine matters of    determine matters of   that a judge is not
 status and              status and             required to determine
 nationality?            nationality?           the status of eligible
                                                heirs or devisees as
                                                Indian if their status
                                                is not relevant in the
                                                probate case.
30.124 When may a       30.124 When may a      Revises to list specific
 judge make a finding    judge make a finding   evidence that will
 of death?               of death?              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.
30.125 May a judge      30.129 May a judge     Redesignated to follow
 reopen a probate case   reopen a probate       other section on
 to correct errors and   case to correct        correcting errors in
 omissions?              errors and             ``Judicial Authority''
                         omissions?             subpart. No substantive
                                                change.
N/A                     30.125 May a judge     New section.
                         order that a
                         property interest be
                         partitioned as a
                         result of a devise?
N/A                     30.250 May a           New section.
                         correction order be
                         issued to correct
                         typographical and
                         other non-
                         substantive errors?
30.126 What happens if  30.251 What happens    Clarifies what
 property was omitted    if BIA identifies      information BIA must
 from the inventory of   additional property    provide to OHA in
 the estate?             of a decedent after    support of the petition
                         a decision is          to add the property, and
                         issued?                provides that the judge
                                                will issue a
                                                distribution order of
                                                the additional property.
30.127 What happens if  30.252 What happens    Clarifies what
 property was            if BIA identifies      information BIA must
 improperly included     that property was      provide to OHA in
 in the inventory?       incorrectly included   support of the petition
                         in a decedent's        to remove the property,
                         inventory?             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.
N/A                     30.253 What happens    New section. Adds a
                         if a request for       process to allow
                         reconsideration of a   interested parties to
                         distribution order     seek reconsideration of
                         is timely made?        the distribution order.
Subpart G--Purchase at  Subpart M--Purchase    Revises this subpart
 Probate                 at Probate.            overall to streamline
                                                the process for
                                                purchasing decedent's
                                                interests at probate
                                                using the statutory
                                                authority in the
                                                American Indian Probate
                                                Reform Act.
30.160 What may be      30.400 What may be     Adds a provision
 purchased at probate?   purchased at           regarding purchase of
                         probate?               minerals-only 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 probate?    purchase at probate?
30.162 Does property    30.402 Does property   No change.
 purchased at probate    purchased at probate
 remain in trust or      remain in trust or
 restricted status?      restricted status?

[[Page 1045]]

 
30.163 Is consent       30.403 Is consent      Adds that, to purchase
 required for a          required for a         any interest included in
 purchase at probate?    purchase at probate?   an approved
                                                consolidation agreement,
                                                the consent of the
                                                recipient of the
                                                consolidated interest is
                                                required.
                                               Adds a new paragraph (b)
                                                establishing procedures
                                                for heirs and devisees
                                                to refuse consent to a
                                                purchase at probate.
                                               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 I do   30.404 How do I        Changes the deadline for
 to purchase at          initiate a purchase    filing a purchase
 probate?                at probate?            request from before
                        30.405 When may I       issuance of the final
                         initiate a purchase    probate decision or
                         at probate?.           order to instead before
                                                the end of the first
                                                probate hearing.
N/A                     30.406 May I withdraw  New section.
                         my request to
                         purchase at probate?
N/A                     30.407 How will OHA    New section.
                         address requests to
                         purchase at probate?
30.165 Who will OHA     30.408 What will OHA   Revisions to incorporate
 notify of a request     include in the         the purchase at probate
 to purchase at          probate decision or    process into the final
 probate?                reconsideration        probate decision or
30.166 What will the     order when a           reconsideration order,
 notice of the request   purchase at probate    since that final
 to purchase at          is pending?            decision and order are
 probate include?                               provided to the heirs or
                                                devisees, BIA, and
                                                anyone who has submitted
                                                a request to purchase.
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 the    New section.
                         purchase at probate
                         process continue
                         after the decision
                         or reconsideration
                         order is issued?
30.167 How does OHA     30.411 How will the    Adds that BIA will obtain
 decide whether to       interests to be        the appraisal or other
 approve a purchase at   purchased at probate   fair market valuation
 probate?                be valued?             and that any appraisal/
                        30.416 How does OHA     valuation must be made
                         decide whether a bid   on the basis of the fair
                         is successful?.        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.
30.168 How will the     (see 30.419, listed    Combines information on
 judge allocate the      below).                allocating proceeds with
 proceeds from a sale?                          information on OHA
                                                issuing the order
                                                approving the sale.
30.169 What may I do    30.415 What may I do   Expands who may object to
 if I do not agree       if I do not agree      a fair market value
 with the appraised      with the               determination to include
 market value?           determination of       any party who may be
                         fair market value in   affected by the
                         the Order to Submit    determination.
                         Bids?                 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.
30.170 What may I do    30.423 What may I do   Replaces process for
 if I disagree with      if I disagree with     objecting to the judge
 the judge's             the judge's            with a process for
 determination to        determination to       appealing to IBIA.
 approve a purchase at   approve or deny a
 probate?                purchase at probate.
30.171 What happens     30.412 What will OHA   Clarifies that OHA issues
 when the judge grants   do when it receives    an Order to Submit Bids
 a request to purchase   BIA's notification     to all potential
 at probate?             that an appraisal/     bidders, and that this
                         valuation has been     occurs after the fair
                         completed?             market value has been
                        30.417 How does the     determined.
                         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 be    New section.
                         contained in the
                         Order to Submit
                         Bids?
30.172 When must the    30.418 When must the   No substantive change.
 successful bidder pay   successful bidder
 for the interest        pay for the interest
 purchased?              purchased?
30.173 What happens     30.419 What happens    Adds information on
 after the successful    after the successful   allocation of the
 bidder submits          bidder submits         proceeds of the sale.
 payment?                payment?
30.174 What happens if  30.420 What happens    No substantive change.
 the successful bidder   if the successful
 does not pay within     bidder does not pay
 30 days?                within 30 days?

[[Page 1046]]

 
30.175 When does a      30.421 When does a     No substantive change.
 purchased interest      purchased interest
 vest in the             vest in the
 purchaser?              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 the   New section.
                         order approving or
                         denying the purchase
                         at probate become
                         final?
Subpart H--             Subpart H--            See below for specific
 Renunciation of         Renunciation of        sections.
 Interest                Interest.
30.180 May I give up    30.180 May I give up   No change.
 an inherited interest   an inherited
 in trust or             interest in trust or
 restricted property     restricted property
 or trust personalty?    or trust personalty?
30.181 How do I         30.181 When may I      Splits into two sections.
 renounce an inherited   renounce a devised     Expands when someone may
 interest?               or inherited           renounce to allow
                         interest?              renunciation 30 days
                        30.186 How do I         after the probate
                         renounce an            decision is mailed,
                         inherited interest?.   before the entry of an
                        30.188 What steps       order on rehearing, or
                         will the judge take    within 30 days after
                         if I designate a       mailing of the
                         recipient?.            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.
N/A                     30.182 Who may         New section. Specifies
                         renounce an            who may renounce on
                         inherited interest     behalf of an heir or
                         on behalf of an heir   devisee who dies before
                         or devisee who dies    the hearing.
                         before the hearing?
30.182 Who may receive  30.183 Who may         Reorganizes these
 a renounced interest    receive a renounced    sections to distinguish
 in trust or             interest in trust or   based on whether the
 restricted land?        restricted land if     decedent had a will or
30.183 Who may receive   the land will pass     not. No substantive
 a renounced interest    pursuant to a valid    change.
 of less than 5          will?
 percent in trust or    30.184 Who will
 restricted land?        receive a renounced
                         interest in trust or
                         restricted land if
                         the land will pass
                         by intestate
                         succession?.
30.184 Who may receive  30.185 Who may         Deletes paragraph (c) of
 a renounced interest    receive a renounced    the current section,
 in trust personalty?    interest in trust      which says the
                         personalty?            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.''
30.185 May my           30.189 May my          Adds a provision allowing
 designated recipient    designated recipient   the designated recipient
 refuse to accept the    refuse to accept the   the opportunity to
 interest?               interest?              refuse the interest.
30.186 Are              30.190 Are             No change.
 renunciations that      renunciations that
 predate the American    predate the American
 Indian Probate Reform   Indian Probate
 Act of 2004 valid?      Reform Act of 2004
                         valid?
30.187 May I revoke my  30.191 May I revoke    Revised when a written
 renunciation?           my renunciation?       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.
30.188 Does a           30.187 What happens    Reorganizes to split into
 renounced interest      if I do not            two sections. No
 vest in the person      designate any          substantive change.
 who renounced it?       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      Subpart I--Summary     See specific sections
 Probate Proceedings     Probate Proceedings.   below.
30.200 What is a        30.200 What is a       Deletes that the
 summary probate         summary probate        supervising judge may
 proceeding?             proceeding?            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.
30.201 What does a      30.206 What notice of  Changes the notice
 notice of a summary     the summary probate    provided to be notice of
 probate proceeding      decision will the      the summary probate
 contain?                judge or ADM           decision and right to
                         provide?               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.

[[Page 1047]]

 
30.202 May I file a     30.201 May I file a    Revises to disallow
 claim or renounce or    claim in a summary     claims in summary
 disclaim an interest    probate proceeding?    probate proceedings
 in the estate in a                             because the estate value
 summary probate                                is only $300 or less.
 proceeding?
N/A                     30.202 What will       New section. Provides
                         happen when OHA        that OHA determines the
                         receives the summary   distribution of estates
                         probate file?          under summary probate
                                                proceedings based on the
                                                information included in
                                                the probate file.
N/A                     30.203 What will       New section. Clarifies
                         happen if the funds    that if the funds in the
                         in the estate are      estate are insufficient
                         insufficient to        to provide all heirs or
                         provide each heir or   devisees with one cent,
                         devisee at least one   then the oldest heir or
                         cent?                  devisee receives all the
                                                funds.
30.203 May I request    30.204 May I request   Revises to eliminate the
 that a formal probate   that a formal          option for requesting
 proceeding be           probate proceeding     the summary probate be
 conducted instead of    be conducted instead   conducted as a formal
 a summary probate       of a summary probate   probate proceeding
 proceeding?             proceeding?            because the estate value
                                                is so small.
30.204 What must a      30.205 What must a     Reorganizes.
 summary probate         summary probate       Deletes reference to a
 decision contain?       decision contain?      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.
30.205 How do I seek    30.207 How do I seek   Deletes reference to ``de
 review of a summary     review of a summary    novo'' review.
 probate proceeding?     probate proceeding?   Clarifies that BIA may
                                                also seek review.
30.206 What happens     30.208 What happens    Lengthens the time OHA
 after I file a          after I file a         has to notify the agency
 request for de novo     request for review?    that prepared the
 review?                                        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.
30.207 What happens if  30.209 What will the   Provides that OHA
 nobody files for de     judge or ADM do with   transmits the official
 novo review?            the official record    record back to the
                         of the summary         agency originating the
                         probate case?          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 Sec.
                                                30.206(b)).
Subpart J--Formal       Subpart J--Formal      See affected sections
 Probate Proceedings     Probate Proceedings.   below.
30.210 How will I       30.210 How will I      Reorganizes to group all
 receive personal        receive personal       mailed (personal) notice
 notice of the formal    notice of the formal   into one section and all
 probate proceeding?     probate proceeding?    public notice into a
                        30.211 How will OHA     separate section.
                         provide public        Clarifies that the will
                         notice of the formal   and codicils will be
                         probate proceeding?.   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 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 OHA may proceed
                                                with a hearing without
                                                physical posting if
                                                physical posting is not
                                                possible due to one of
                                                the listed
                                                circumstances, including
                                                when the agency office
                                                is closed or
                                                inaccessible or
                                                extenuating
                                                circumstances prevent
                                                personnel from posting.
                                                (See definition of
                                                ``extenuating
                                                circumstances,'' which
                                                includes situations such
                                                as a natural disaster
                                                affecting the agency
                                                office or travel to the
                                                agency office or other
                                                event affecting the
                                                agency office's ability
                                                to provide sustained
                                                continuous operations
                                                and services.)

[[Page 1048]]

 
30.211 Will the notice  N/A..................  Deletes separate
 be published in a                              provision for publishing
 newspaper?                                     in a newspaper 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.
30.238 May I file a     30.238 May I file a    Specifies that you must
 petition for            petition for           be an interested party
 rehearing if I          rehearing if I         to seek a rehearing and
 disagree with the       disagree with the      the basis for your
 judge's decision in a   judge's decision in    request must be to
 formal probate          a formal probate       correct a substantive
 hearing?                hearing?               error. Expands on what
                                                issues may be raised and
                                                what evidence may be
                                                relied upon in
                                                rehearing.
30.239 Does any         30.239 Does any        No change.
 distribution of the     distribution of the
 estate occur while a    estate occur while a
 petition for            petition for
 rehearing is pending?   rehearing is
                         pending?
30.240 How will the     30.240 How will the    Clarifies that the judge
 judge decide a          judge decide a         will consider the
 petition for            petition for           petition for rehearing
 rehearing?              rehearing?             as a petition for
                                                reopening if not timely
                                                filed.
                                               Adds provision allowing
                                                the judge to summarily
                                                deny the petition based
                                                on certain deficiencies.
30.241 May I submit     30.241 May I submit    No substantive change.
 another petition for    another petition for   Moves information
 rehearing?              rehearing?             regarding the judge's
                                                jurisdiction to Sec.
                                                30.242.
30.242 When does the    30.242 When does the   Includes information on
 judge's order on a      judge's order on a     when the jurisdiction of
 petition for            petition for           the judge terminates.
 rehearing become        rehearing become
 final?                  final?
30.243 May a closed     30.243 May a closed    Deletes the chart and
 probate case be         probate case be        states by whom and the
 reopened?               reopened?              circumstances in which a
                        30.244 When must a      closed probate case may
                         petition for           be reopened.
                         reopening be filed?.  Splits provisions
                        30.245 What legal       regarding deadlines for
                         standard will be       filing petitions to
                         applied to reopen a    reopening to proposed
                         case?.                 Sec.   30.244 to
                        30.246 What must be     simplify the deadline to
                         included in a          one year after discovery
                         petition for           of the error.
                         reopening?.           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.
N/A                     30.247 What is not     New section. Clarifies
                         appropriate for a      what issues or
                         petition for           objections a petition
                         reopening?             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.
30.244 How will the     30.248 How will the    Adds provision allowing
 judge decide my         judge decide my        the judge to summarily
 petition for            petition for           deny the petition based
 reopening?              reopening?             on certain deficiencies.
30.245 What happens if  30.249 What happens    Combines two sections. No
 the judge reopens the   when the judge         substantive change.
 case?                   issues an order on
30.246 When will the     reopening?
 decision on reopening
 become final?
Subpart K--             Subpart N--            See affected sections
 Miscellaneous           Miscellaneous.         below.
30.250 When does the    30.500 When does the   Redesignated. No change.
 anti-lapse provision    anti-lapse provision
 apply?                  apply?
N/A                     30.501 When is joint   New section. Establishes
                         tenancy presumed?      that joint tenancy will
                                                be 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
                         judge resolve          that the judge will give
                         conflicts between      priority to the
                         the anti-lapse         presumption of joint
                         provision and          tenancy, such that the
                         presumption of joint   share of the deceased
                         tenancy?               devisee will go to the
                                                surviving devisees
                                                (rather than to the
                                                deceased devisee's
                                                descendants).
30.251 What happens if  30.503 What happens    Redesignated. No change.
 an heir or devisee      if an heir or
 participates in the     devisee participates
 killing of the          in the killing of
 decedent?               the decedent?
30.252 May a judge      30.504 May a judge     Redesignated. No change.
 allow fees for          allow fees for
 attorneys               attorneys
 representing            representing
 interested parties?     interested parties?
30.253 How must minors  30.505 How must        Redesignated. No change.
 or other legal          minors or other
 incompetents be         legal incompetents
 represented?            be represented?
30.254 What happens     30.506 When a          Deletes chart.
 when a person dies      decedent died          Reorganizes based on
 without a valid will    intestate without      whether the decedent
 and has no heirs?       heirs, what law        died before or after the
                         applies to trust or    date of AIPRA's
                         restricted property?   enactment. Adds detail
                                                as to how interests will
                                                be distributed under the
                                                statute in each case,
                                                rather than just citing
                                                the statutory
                                                provisions.
N/A                     30.507 How will trust  New section. Specifies
                         personalty be          how trust personalty is
                         distributed if a       distributed in the
                         decedent died          circumstance in which
                         intestate on or        AIPRA applies but fails
                         after June 20, 2006,   to state how trust
                         and the Act does not   personalty is
                         specify how the        distributed: If the
                         trust personalty       decedent has no
                         should be              surviving spouse or
                         distributed?           eligible heirs or trust
                                                or restricted property
                                                over which one and only
                                                one Tribe has
                                                jurisdiction.
------------------------------------------------------------------------


[[Page 1049]]

V. Tribal Consultation and Public Hearing

    The Department will be hosting the following Tribal consultation 
session to discuss this proposed rule:

----------------------------------------------------------------------------------------------------------------
                Date                             Time                                Location
----------------------------------------------------------------------------------------------------------------
Tuesday, February 9, 2021..........  2 p.m.-5 p.m. Eastern Time.  Call-in number: (800) 369-3356.
                                                                  Passcode: 8182564
----------------------------------------------------------------------------------------------------------------

    The Department will also be holding a public hearing for anyone for 
whom the Department holds property in trust or restricted status or for 
anyone else interested in this rulemaking, as follows:

----------------------------------------------------------------------------------------------------------------
                Date                             Time                                Location
----------------------------------------------------------------------------------------------------------------
Thursday, February 11, 2021........  2 p.m.-5 p.m. Eastern Time.  Call-in number: (888) 790-3548.
                                                                  Passcode: 6643062
----------------------------------------------------------------------------------------------------------------

    Tribal consultation is reserved for officially designated 
representatives of federally recognized Tribes. Anyone who is not an 
officially designated representative of a federally recognized Tribe 
that is interested in this rulemaking should join the public hearing 
session only.

VI. 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 proposed 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 proposed rule in a manner consistent with 
these requirements. This proposed rule is also part of the Department's 
commitment under the Executive Order to reduce the number and burden of 
regulations.

B. Reducing Regulations and Controlling Regulatory Costs (E.O. 13771)

    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities and control regulatory 
costs. E.O. 13771, however, applies only to significant regulatory 
actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 
13771 does not apply to this rule.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed 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 proposed rule affects only individuals' estates and does 
not affect small entities.

D. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rulemaking under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. This proposed 
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, 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.

E. Unfunded Mandates Reform Act

    This proposed 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 proposed 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.

F. Takings (E.O. 12630)

    This proposed 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.

G. 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.

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

    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this proposed 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

[[Page 1050]]

section 3(b)(2) requiring that all regulations be written in clear 
language and contain clear legal standards.

I. 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 
proposed 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 proposed rule affects the probate of trust or restricted 
property held by individuals, many or most of whom are likely Tribal 
members. Information on Tribal consultation is provided in Section IV.

J. Paperwork Reduction Act

    This proposed 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 7/31/2021). 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.

K. National Environmental Policy Act

    This proposed 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.

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

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

M. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and,
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

N. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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 proposes to amend 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.

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.
    (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.

[[Page 1051]]

    (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.
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; and
    (2) 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.
* * * * *
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 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:


[[Page 1052]]


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

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) Sections 30.400 through 30.424 (purchases at probate);
    (3) Sections 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 definitions for ``BLM'' and ``Decision or order (or 
decision and order)'';
0
c. Adding in alphabetical order the definition of ``Decision'';
0
d. Removing the definition for ``De novo review'';
0
e. Adding in alphabetical order definitions for ``Distribution order'', 
``Extenuating circumstances'', and ``Home agency'';
0
f. Revising the definitions of ``Indian probate judge'' and 
``Interested party'';
0
g. Adding in alphabetical order definitions for ``Joint tenancy'', 
``Lineal descendant'', ``Order'', and ``Petition to Complete Purchase 
at Probate'';
0
h. Revising the definition of ``Summary probate proceeding''; and
0
i. Adding in alphabetical order the definition ``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.
* * * * *
    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.
* * * * *
    Extenuating circumstances means circumstances including, but not 
limited to, situations such as a natural disaster affecting the agency 
office or travel to the agency office or other event affecting the 
agency office's ability to provide sustained continuous operations and 
services.
* * * * *
    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.
    Interested party means:
    (1) Any potential or actual heir, except for potential or actual 
heirs who may or will inherit solely as co-owners of an allotment;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any Indian Tribe having a statutory option to purchase the 
trust or restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
* * * * *
    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.
* * * * *
0
8. In Sec.  30.114, revise paragraph (b) to read as follows:


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

* * * * *
    (b) Potential heirs who may inherit solely as co-owners of an 
allotment will not be sent actual notice unless they have previously 
filed a request for notice with BIA or OHA.
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) * * *

[[Page 1053]]

    (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.
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?


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 
you are 18 years or older and not under a legal disability.


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 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

[[Page 1054]]

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 person who owns an undivided trust or restricted interest in 
the same parcel;
    (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 specifying the interest to be renounced. 
The declaration must be signed by you and acknowledged before a notary 
or judge.
    (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 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

[[Page 1055]]

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:


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

[[Page 1056]]

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/phd.
    (d) 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.
    (e) OHA may proceed with the hearing without physical posting of 
the notice if physical posting was not possible due to:
    (1) The agency office being closed or inaccessible; or
    (2) Extenuating circumstances preventing personnel physically 
posting.
0
18. 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:
    (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.


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.

[[Page 1057]]

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.
    (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
19. Add Sec. Sec.  30.247 through 30.249 under undesignated center 
heading ``Decisions in Formal Proceedings'' to read as follows:


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 requests the same relief that was previously 
addressed in a rehearing order or reopening order;
    (3) The petition raises only issues or objections by or on behalf 
of an 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.

[[Page 1058]]

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

0
20. Redesignate Sec. Sec.  30.250 and 30.251 through 30.254 as 
Sec. Sec.  30.500 and 30.503 through 30.506.

Subpart K [Removed and Reserved]

0
21. Remove and reserve subpart K.
0
22. Add new Sec. Sec.  30.250 through 30.253 under undesignated center 
heading ``Decisions in Formal Proceedings'' to read as follows:


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;
    (3) Include the additional property in an existing or new 
consolidation agreement;
    (4) Allege an error in BIA's inventory 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 it 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 object to the 
findings and conclusions of the

[[Page 1059]]

distribution order or to 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) The judge may affirm, modify, or vacate the distribution order.
    (g) On entry of a final order, 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.
    (h) Neither BIA nor any interested party may file successive 
petitions for reconsideration.
    (i) 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.
0
23. 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?
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?


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 person who owns an undivided trust or restricted interest 
in the same parcel of land;
    (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:

[[Page 1060]]

    (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 heir or devisee may notify OHA at any time after the 
request for purchase at probate is filed that the heir or devisee is 
not willing to consent to sell.
    (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.
    (c) 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.
    (d) 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 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. 
Any property interest that is the subject of a pending request for 
purchase at probate 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 approval/
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

[[Page 1061]]

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 of trust or restricted interests in the same 
allotment 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
    (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 makes 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

[[Page 1062]]

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.


Sec. Sec.  30.500 and 30.503 through 30.506  [Designated as Subpart N]

0
24. Designate newly redesignated Sec. Sec.  30.500 and 30.503 through 
30.506 as subpart N and add a heading for subpart N to read as follows:

Subpart N--Miscellaneous

0
25. 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
26. 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.
    (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 of the parcel 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 of the parcel 
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
27. 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

[[Page 1063]]

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.

Tara Sweeney,
Assistant Secretary--Indian Affairs.
Scott Cameron,
Principal Deputy Assistant Secretary for Policy, Management and Budget.
[FR Doc. 2020-28306 Filed 1-6-21; 8:45 am]
BILLING CODE 4337-15-P