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)
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?
Any of your non-trust property like a house, car, bank account, or personal belongings located on the Reservation will be distributed by the Fort Peck Tribal Court.
If your spouse survives you, half of your property will pass to your spouse, and half will pass to your children.
If your spouse does not survive you, your property will be split equally among your children.
For other situations, you should seek the advice of an attorney.
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.
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.
Montana Legal Services Association (MLSA) provides free legal information, advice and/or representation to low-income Native Americans with civil legal issues on and off Montana’s Indian Reservations. Apply by calling (406) 442-9830 ex 149 or emailing firstname.lastname@example.org, or online at mtlsa.org.
All services provided by MLSA are free and confidential. MLSA can help with the following:
Divorce, custody, and adoption issues
Public benefits issues (SNAP, TANF, SSI, and more)
You can use the free interactive Will-in-a-Box to create an Indian Will that will say who should get your personal property, real estate, and Indian trust land after you pass. The interactive program fills out an Indian Will based on the answers you give in an online interview. The Will is only valid once you properly sign it.
Justice Lives Here. MontanaLawHelp.org is your home for free civil legal information, forms, advice and free or low-cost representation in court by Montana Legal Services Association. This website only has information about the laws in Montana.