General Indian Will Information

Common questions about AIPRA and writing your Will:

Q: Who can I leave my trust property to in a will?

A: There are four types of people (eligible heirs) who can receive your trust property in a will.

Any lineal descendant. This means you can give your parents, children, grandchildren, great grandchildren, etc. anyone who shares some amount of your family blood. Your trust property will remain in trust status, even if that person does not qualify as an Indian.
Any other co-owner in that parcel of land. This person also does not need to be an Indian.
The tribe where the land is located.
Any Indian. This means any enrolled member or eligible to be enrolled member of any tribe. The person does not need to be a member of the tribe where the land is located.

Q: Can I leave my trust property to a Non-Indian?

A: Yes – but only if they are a lineal descendant of yours (children, grandchildren, great grandchildren) or are already a co-owner in that parcel of land.

Q: Can I leave my trust property in fee to an Indian?

A: No, AIPRA does not permit you to write a will that leaves an Indian your trust property in fee status.

Q: Can I leave my trust property in fee to a Non-Indian?

A: It depends. If your trust land is from an Indian Reorganization Act (“IRA”) Tribe, you cannot devise it in fee to anyone. If your trust land is from a non-IRA tribe, you may be able to leave it in fee status to a Non-Indian but you should first check to see if the tribe where the land is located has its own approved probate codes or land consolidation plan that does not allow this.

Q: Who is an “Indian”?

A: Generally, AIPRA defines an Indian as (1) a tribal member or a person eligible to become a tribal member, or (2) a child or grandchild of an Indian, or (3) a person who owned an interest in trust lands prior to October 24, 2004

Q: If I don’t make a Indian Will, what will happen?

A: When you die without a will, it is called dying “intestate.” You don’t choose who receives your trust or personal property, the law does. Without a will, your trust property will be given away according to AIPRA’s intestacy rules or if your tribe has an approved probate code, by their rules.

Also if you die without a will and hold small interests in trust lands less than 5%, the tribe or co-owner of your small trust interests may be able to petition the court at the probate of your estate to purchase your interests without permission of any of your family members or heirs. If you have a will, this cannot happen.

Q: Do I need to have an attorney write my Indian Will?

A: No, you can write your own. But it is always best to see an attorney so you can be sure that your will is a valid document that will be accepted by a probate court after your death. Once you die, it will be too late to correct the will or make it legal.

You can handwrite your own will. The will should clearly state who you would like to receive your trust property (heirs). When you name the heirs, you need to include as much information about them as possible. This should include their full legal name, their addresses, birthdates and any BIA or tribal membership numbers.

For the will to be valid there are several things you MUST do. If you do not do these properly, your will is invalid and your property will be given to heirs according to the intestacy laws under AIPRA or the tribe’s approved probate code.

Generally for a will to be valid:

It must be in writing, either handwritten or typed
You must leave your trust property to eligible heirs
You must sign the will and include as much information about yourself as you can provide. This should include your full legal name, your date of birth, your current address, tribal membership or BIA number.
You must have two people witness you signing your will. The witnesses cannot receive anything from your will, they must be disinterested.
Both witnesses must watch you sign the will and then both witnesses must also sign and print on the will, they should also include a current address in case there are question about the will’s execution later.

Other things you can do to help make sure the will is valid:

There is an affidavit that can be filled out by the witnesses and a notary where they swear to the fact they saw you sign the will, that you stated it was your will, and that the will represented your wishes and that you appeared to be doing it of your own free will and appeared competent.
When signing your will, you should say out loud to the witnesses that this is your will and that the will says exactly how you want your property to be given.

Again, it is always best to have an attorney write a will for you or review your handwritten will to make certain it is legal and valid.