How A Will Lets You Decide
If you die without a will, or “intestate”, a court will decide who inherits your property. The best way to ensure your wishes are carried out is to write a will. Dying “intestate” is when someone dies without writing a will. Writing a will is another way for tribal people to choose what happens to your property after you walk on.
What Goes in a Will?
- Land (on-or off- Reservation)
- House
- Personal Property (cars, household items, etc.)
What Happens to Trust Assets Without a Will?
Without a will, decisions about your trust land and IIM account will be made by an Indian Probate Judge. This judge must follow the American Indian Probate Reform Act.
Your trust land will be inherited by your immediate family. First to your children or grandchildren, possibly great-grandchildren, and if you have none, then to your parents or brothers and sisters. In order to inherit your land, your heirs must be descendants of yours within two generations, or be an “Indian” as defined by AIPRA. This generally means that they are enrolled or eligible to be enrolled in a tribe.
AIPRA has some special rules about land you own that you have less than a 5% interest in. That land will go only to your oldest eligible child, grandchild, or great-grandchild. Also, the Department of the Interior will have the option to purchase your interest during probate, even if your heirs don’t agree. These special rules when you own less than 5% interest don’t apply when you write a valid will. But in general, you must still leave your trust land to your heirs who are enrolled or eligible to be enrolled in a tribe even when you write a valid will.
What Happens to Non-Trust Assets Without a Will?
Non-trust property like a house, car, bank account, or personal belongings located on the Reservation will be distributed by the Crow Tribal Court. Crow Tribal Law generally divides the intestate estate into a “community estate” (everything a married couple acquired during the marriage, except gifts or inheritances made to one individually) and a “separate estate” (everything a married couple owned before the marriage).
A surviving spouse will inherit all of the Half of the separate estate will go to the children, if there are any, and the other half will go to the surviving spouse. If there are no children, 3/4th of the separate estate will go to the surviving spouse, and 1/4th will be split among any surviving parents and siblings.
If there is no surviving spouse, then the estate will go to the children in equal amounts, with a portion going to the grandchildren, of the children who had already passed on. These cases are highly dependent on the unique facts of each specific situation.
For questions regarding other situations, please seek the advice of an attorney.
Does any property go to the Tribe?
Yes, but only when there is no will and no surviving spouse, child, grandchild, great-grandchild, parent, sibling, grandparent, aunt, uncle, or cousin.
What Should I Do?
The only way to guarantee your wishes is by drafting a will. Although you should talk to a lawyer, you can also make a “holographic will”, or a will written in your handwriting.
How Can I Write a Will?
Montana Legal Services Association (MLSA) drafts wills for tribal members across the state. MLSA can also draft powers of attorney, advanced healthcare directives, and gift deeds.
Qualifications:
- You don’t need to own trust land
- MLSA considers many factors when determining eligibility. The best way to find out if you qualify is to apply.
Costs:
All MLSA services are free of charge.
