Rule2021-27257
American Indian Probate Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 20, 2021
Effective
January 19, 2022
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
The Department of the Interior (Department) is finalizing updates to its regulations governing probate of property that the United States holds in trust or restricted status for American Indians, in an effort to continually improve the services the Department provides to individual Indians and Tribes. These updates 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, and specifying which reasons justify reopening of closed probate estates. The revisions 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, and improve notification to interested parties by, among other things, requiring posting of probate notices on a devoted OHA web page.
Full Text
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[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 72068-72094]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27257]
[[Page 72067]]
Vol. 86
Monday,
No. 241
December 20, 2021
Part III
Department of the Interior
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Bureau of Indian Affairs
25 CFR Part 15
Office of the Secretary
43 CFR Part 30
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American Indian Probate Regulations; Final Rule
Federal Register / Vol. 86 , No. 241 / Monday, December 20, 2021 /
Rules and Regulations
[[Page 72068]]
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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: Final rule.
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SUMMARY: The Department of the Interior (Department) is finalizing
updates to its regulations governing probate of property that the
United States holds in trust or restricted status for American Indians,
in an effort to continually improve the services the Department
provides to individual Indians and Tribes. These updates 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, and specifying
which reasons justify reopening of closed probate estates. The
revisions 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, and improve notification to interested
parties by, among other things, requiring posting of probate notices on
a devoted OHA web page.
DATES: This rule is effective on January 19, 2022.
FOR FURTHER INFORMATION CONTACT: Elizabeth K. Appel, Director, Office
of Regulatory Affairs & Collaborative Action--Indian Affairs,
<a href="/cdn-cgi/l/email-protection#1550797c6f747770617d3b746565707955777c743b727a63"><span class="__cf_email__" data-cfemail="1451787d6e757671607c3a756464717854767d753a737b62">[email protected]</span></a>, (202) 273-4680.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background and History of This Rulemaking
III. Proposed Rule Comments and Responses
A. Trust Funds for Funeral Services (Sec. 15.301)
B. Definitions (Sec. 30.101)
C. Mailed Notice of Probate to Co-Owners (Sec. 30.114)
D. Determination of Indian Status (Sec. 30.123, Sec. 30.235)
E. Presumption of Death (Sec. 30.124)
F. Partition (Sec. 30.125)
G. Renunciations (Sec. Sec. 30.180-30.192)
H. Summary Probate Proceedings (Sec. Sec. 30.200-30.209)
I. Posted and Published Notice of Probate (Sec. 30.211)
J. Rehearing (Sec. Sec. 30.238-30.242) and Reopening
(Sec. Sec. 30.243-30.249)
K. Correction of Non-Substantive Errors in Probate Decision
(Sec. 30.250)
L. Inventory Corrections: New Property Added After Probate
Decision (Sec. 15.404/Sec. 30.251) and Incorrectly Included
Property (Sec. 15.405/Sec. 30.252)
M. Purchase at Probate (Subpart M)
N. Miscellaneous
IV. Overview of Final Rule
A. Summary of Final Rule
B. Changes From Proposed Rule to Final Rule
C. Crosswalk of Current Regulation to New Regulation
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
I. Executive Summary
This final rule updates regulations that address how OHA probates
property that the United States holds in trust or restricted status for
American Indians. These revisions 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, and
specifying which reasons justify reopening of closed probate estates.
The revisions 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, and improve notification to
interested parties by, among other things, requiring posting of probate
notices on a devoted OHA web page.
II. Background and History of This Rulemaking
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. In
2019, the Department identified 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).
In January 2021, the Department then published a proposed rule. 86
FR 1037 (January 7, 2021). In the preamble to the proposed rule, the
Department addressed each of the six comment submissions it received in
response to the ANPRM. During the public comment period, the Department
hosted a Tribal consultation session on February 9, 2021, and a public
meeting on February 11, 2021. The Department also held an additional
public session at the request of Tribal members on March 9, 2021. The
original deadline for comments on the proposed rule was March 8, 2021;
however, in response to requests to extend the comment deadline, the
Department announced on its website in March that it would be extending
the deadline for comments to April 8, 2021, and later to April 29,
2021. 86 FR 19585 (April 14, 2021).
III. Proposed Rule Comments and Responses
The Department received 24 written comment submissions on the
proposed rule, including three from Tribes. The Department also
received several comments during its Tribal consultation and public
hearing sessions. The following provides a summary of the comments and
the Department's responses.
[[Page 72069]]
A. Trust Funds for Funeral Services (Sec. 15.301)
The two Tribes that commented on Sec. 15.301 expressed their
support of increasing the amount of funding available for funeral
services from decedents' Individual Indian Money (IIM) accounts. One
Tribe also expressed support for the proposed removal of the
requirement for the IIM account to have a specific balance in order for
funds to be disbursed for funeral services.
Response: The final rule adopts the proposal to increase the
funeral service funding available from $1,000 to $5,000 and remove the
requirement for the IIM account to have a specific balance in order for
funds to be disbursed for funeral services.
One Tribe noted that in some circumstances, the descendant's Tribe
may pay for funeral costs and that BIA should ensure the Tribe has not
paid, to safeguard Individual Indian Money (IIM) accounts. An
individual commenter also noted that the Tribe may pay for funeral
arrangements.
Response: To address these comments, the final rule adds a
condition to receiving funds that the requestor has not received
sufficient funds from the decedent's Tribe to pay the entire cost of
the funeral arrangements. See Sec. 15.301(a)(2).
One commenter requested that the creditor claims regulations that
were in place prior to enactment of AIPRA be restored.
Response: The proposed rule did not propose any changes to creditor
claim provisions beyond increasing the amount of funding from IIM
accounts available for funerals. The creditor claims regulations that
were in place prior to the enactment of AIPRA were replaced through
public notice and comment rulemaking in 2005 and 2008. See 70 FR 11803
(March 9, 2005); 73 FR 67255 (November 13, 2008).
B. Definitions (Sec. 30.101)
A commenter requested a new definition for ``co-owner'' and for the
phrase ``potential or actual heirs who may or will inherit solely as
co-owners.''
Response: The final rule adds a new definition for co-owner in
Sec. 30.101, to mean persons who own an undivided trust or restricted
interest in the same parcel in which the decedent owns an interest. No
definition of the other phrase was added because the proposed
provisions using that phrase were not adopted in the final rule.
C. Mailed Notice of Probate to Co-Owners (Sec. 30.114)
Four individual commenters objected to the proposed rule's approach
to providing notice of the probate to potential heirs who may inherit
solely as co-owners (i.e., persons who own an undivided trust or
restricted interest in the same parcel in which the decedent owns an
interest). The proposed rule at Sec. 30.114 stated that potential
heirs who may inherit solely based on their status as co-owners would
not receive mailed notice of a probate proceeding unless they
previously filed a request for notice with BIA or OHA. The commenters
who objected to this approach stated that the co-owners should continue
to receive mailed notice of the probate without having to file a
request to receive notice.
Response: To address commenters' objections, the final rule retains
the current regulations' approach, which requires that all interested
parties--including co-owners, when they are potential heirs--receive
mailed notice of probate proceedings. See Sec. 30.114 and definition
of ``interested party'' in Sec. 30.101. Nevertheless, it is important
to note that a co-owner is not necessarily an heir, and the statute
requires actual written notice only to ``all heirs.'' See 25 U.S.C.
2206(m). A co-owner may potentially be an heir in only 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.
One commenter asked how co-owners would know of the opportunity to
purchase decedent's interest at probate if they are not notified of the
probate.
Response: Under both the current and final rule, co-owners receive
mailed notice if they are potential heirs; all other co-owners receive
notice through posting.
D. Determination of Indian Status (Sec. 30.123)
A Tribe stated its support of limiting determinations as to whether
heirs and devisees have Indian status in Sec. 30.123 to those
situations where the determinations are necessary for the probate
decision and stated that this change would increase efficiency.
Response: The final rule includes this proposed change at both
Sec. 30.123 and Sec. 30.235, so that judges will make the
determination of Indian status only when relevant.
An individual stated that determining Indian status cannot be
eliminated because it is relevant in determining whether a person takes
in fee or is eligible for Tribal membership. This individual stated
that it is more difficult to identify when Indian status does not have
to be determined than to determine the status for everyone, and
suggested a chart needs to be prepared to show all situations in which
Indian status is relevant.
Response: The final rule does not eliminate the requirement to
determine Indian status. The final rule adopts the proposed rule
provision requiring a determination of Indian status ``where
relevant.'' There are situations where Indian status is not relevant,
and under the final rule, the judge would not issue a determination of
Indian status in those situations; however, the judge would issue a
determination of Indian status when that status is relevant.
E. Presumption of Death (Sec. 30.124)
A Tribe who commented on the proposed presumption of death
provisions agreed that the six-year period should begin on the date of
the last known contact with the absent person and stated that allowing
for a presumption will improve efficiency while allowing parties to
present evidence to rebut the presumption if appropriate.
Response: The final rule includes these proposed presumption of
death provisions.
An individual stated their opposition to the proposed presumption
of death provisions, stating that there are a lot of people who are
absent for six years and that should not allow a presumption that they
no longer exist without evidence of the person's routine daily
activities and social relationships and documentation of the measures
taken to locate the person.
Response: The requirements for BIA to initiate a probate case when
a person has been absent without explanation for six or more years are
at Sec. 15.106 and would not change under either the proposed or final
rule. The final rule adopts the proposed rule's provisions for allowing
the judge to presume that the person died at a certain time (i.e., the
date of last contact based on 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.).
F. Partition (Sec. 30.125)
A Tribe who commented on the proposed partition section at Sec.
30.125 noted that it is a good idea to allow someone to partition their
land by will.
[[Page 72070]]
Response: The final rule includes these proposed provisions
allowing for partition by will.
G. Renunciations (Sec. Sec. 30.180-30.192)
The Tribe who commented on the proposed renunciation provisions
expressed support of the expanded opportunities for renunciation to
protect property from going out of trust.
Response: The final rule adopts the proposed renunciation
provisions expanding opportunities for renunciation.
An individual stated that there is no downside to allowing maximum
opportunities for parties to renounce inheritance of interests. A group
of individuals commenting together recounted their experience with a
Tribe renouncing an interest in a specific estate.
Response: The final rule increases the opportunity for
renunciations by allowing renunciations at the rehearing stage. To
clarify that entities, in addition to individuals, may renounce, the
final rule explicitly adds in Sec. 30.180 that entities may renounce.
H. Summary Probate Proceedings (Sec. Sec. 30.200-30.209)
An individual objected to the proposed rule's approach to summary
probate proceedings as a violation of due process because affected
parties would not receive notice of the probate before the probate
decision is issued.
Response: The final rule adopts the proposed rule's approach to
notice in summary probate proceedings because there is no violation of
due process for the following reasons: (1) While interested parties do
not receive notice of the summary probate until a probate decision is
issued, at that time, the interested parties have the right to file a
request for review of the probate decision and the probate decision
does not become final unless and until the 30-day period for them to
request review has expired without any interested party filing a timely
request. This approach mirrors the current summary probate proceeding
approach, except that the term ``proposed summary probate decision'' is
no longer used. (2) The proposed and final rule also limit the estates
that are subject to summary probate proceedings by lowering the dollar
threshold (from $5,000 to $300), meaning that interested parties in
more estates will receive formal probate proceeding notice. The amount
of due process that is appropriate depends upon the circumstances, and
this rule's approach appropriately considers the circumstances. (3)
Other revisions to the summary probate process that allow estates to be
handled more efficiently obviate the need for notice prior to the
issuance of the summary probate decision: Elimination of the option to
convert the proceedings to formal probate proceedings, elimination of
consideration of claims against the 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 also 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 a summary probate proceeding decision to file a request for review
and streamlines that review process by allowing for reconsideration
rather than de novo review.
A commenter stated that eliminating hearings for simple estates
undermines due process and that more due process is owed because of the
trust responsibility. Another commenter stated that due process should
be afforded even for small estates.
Response: Due process is still being afforded to interested parties
in summary probate proceedings because, as explained above, the summary
probate decision does not become final until the period for interested
parties to request review has passed. As noted above, this approach
mirrors the current approach except that the probate decision is no
longer being called a ``proposed summary probate decision.''
A Tribe stated their support of disallowing claims against small
estates in summary probate proceedings. An individual asked for an
explanation for disallowing claims.
Response: The final rule continues to disallow claims with the goal
of efficient handling of low value cash-only estates.
A commenter stated that summary probate proceedings should not be
applied to estates containing real property.
Response: Summary probate proceedings are available only for cash-
only estates.
One Tribe objected to reducing the monetary threshold for estates
from $5,000 to $300 for summary probate.
Response: The Department considered this comment and determined
that the summary process will be more effective if it focuses on
estates that are valued at $300 or less. The Department concluded that
there is a value to conducting formal probate proceedings for cash only
estates valued between $301 and $5,000.
The same Tribe objected to allowing 30, rather than 10, days in
Sec. 30.208 for OHA to notify the agencies and interested parties that
a request review of a summary probate decision has been filed, noting
that the extension conflicts with the stated purpose of the revisions
to make the process more efficient.
Response: The rule expanded the time for OHA to notify agencies and
interested parties that a request for review of a summary probate
decision has been filed, because this expansion is necessary to allow
OHA flexibility in balancing workloads and the maximum additional 20
days this could add to the process is outweighed by the efficiencies
gained from eliminating the option for converting summary probate
proceedings to formal probate proceedings.
One commenter suggested the Department use a ``transfer on death
deed'' for small estates, rather than the summary probate process to
allow assets to transfer to a single beneficiary immediately upon
decedent's death without having to go through any OHA process.
Response: The Department has reviewed the possibility of allowing
for ``payable on death'' provisions but has determined that a
legislative change is necessary to provide authority for such an
approach.
An individual commenter requested the definition of ``summary
probate proceeding'' and the provision at Sec. 30.200(b) be revised to
add the phrase ``and does not include any trust or restricted land.''
Response: The final rule does not incorporate these edits because
the definition and Sec. 30.200(b) are both clear in saying that the
estate includes ``only an IIM account'' and ``only funds in an IIM
account,'' respectively.
I. Posted and Published Notice of Probate (Sec. 30.211)
Two Tribes and two individuals expressed concern about the proposal
to allow for no physical posting of the formal probate proceeding if
the agency office is closed or inaccessible or if extenuating
circumstances prevent personnel physically posting. One of these Tribes
stated that it would be helpful to post at the local BIA agency when
possible. The other Tribe stated that there should be physical posting
in at least one public location.
Response: To address these comments, the final rule requires
physical posting in at least one location: The agency or, if posting at
the agency is not possible due to the agency office being closed or
inaccessible, then at a conspicuous place near that agency. The
[[Page 72071]]
final rule does not adopt the proposal to allow for no physical posting
in some circumstances and deletes the condition for extenuating
circumstances preventing personnel physically posting as well as the
proposed definition for ``extenuating circumstances'' in Sec. 30.101.
Two Tribes expressed their support for posting hearing notices on a
central website. One of the Tribes recommended a centralized website
for all notices related to probate cases and other non-probate matters.
An individual also expressed support for posting notices on OHA's
website.
Response: The final rule includes the proposed provision requiring
OHA to post probate notices on its website. BIA is also working on
making additional appropriate information on the probate process
available on its website.
One Tribe agreed with the proposal to remove the requirement for
newspaper notices as no longer necessary; however, another Tribe noted
that publication in the Tribal newspaper may better reach elders in the
community.
Response: The final rule adds that an OHA judge may cause notice to
be published in a local newspaper or other publication if the judge
determines that additional notice is appropriate. See Sec. 30.211(d).
J. Rehearing (Sec. Sec. 30.238-30.242) and Reopening (Sec. Sec.
30.243-30.249)
The Tribe that commented on the rehearing and reopening provisions
supported imposing limitations on reopening to avoid prolonging the
probate, limiting who may seek rehearing to only interested parties,
requiring a rehearing to be based on correcting a substantive error,
and allowing a rehearing petition to be considered as a reopening
petition if not timely filed so the petitioner would not have to
refile. The Tribe also supported prohibiting successive petitions for
rehearing by the same party to prevent parties from abusing the process
and supported the limit of one year (from discovery of the error) for
reopening when an individual or BIA on behalf of an individual for
reopening and requiring a showing of an error of fact or law.
Response: The final rule adopts all these proposed provisions.
An individual stated the provisions barring persons from seeking
post-decision review because they were not present at the original
hearing does not account for how poor U.S. mail service is on Indian
reservations.
Response: Neither the proposed nor final rule bar persons who were
not present at the original hearing from seeking post-decision review.
See Sec. 30.238(d)(1) (``whether or not you attended the hearing.'')
The same individual objected to the 30-day period for seeking a
rehearing (at Sec. 30.238(a)) and stated that the 60-day period
allowed under regulations in place before AIPRA was enacted should
never have been changed.
Response: The period for seeking reopening has been 30 days since
2008 and there have been no practical issues with that time period, as
most challenges are resolved quickly and 60 days needlessly prolongs
the process.
A commenter objected to limitations on petitions to reopen, noting
that individuals fail to participate in probates for legitimate
reasons.
Response: The limitations on petitions to reopen apply to those who
received proper notice of the probate and so had the opportunity to
participate in the probate but did not avail themselves of that
opportunity.
An individual stated that any legitimate family member should be
allowed to petition the judge to reopen a probate.
Response: Family members who are interested parties should receive
sufficient notice and opportunity to participate in the probate; if
they have not received sufficient notice, then they may seek reopening
if proper grounds are shown.
A Tribe stated that an explicit timeframe, such as 10 days, should
be added for OHA to notify BIA of the filing of a petition for
rehearing, rather than ``as soon as practicable.''
Response: The final rule retains the phrase ``as soon as
practicable'' rather than adding a specific period because this phrase
recognizes the urgency but allows for more flexibility than a specific
number of days would afford.
An individual stated that the season for reopening petitions to be
filed runs indefinitely under proposed Sec. 30.243, and that an end
point should be added to establish finality and certainty.
Response: The final rule does not add an outer bound deadline
because a deadline would limit the judge's discretion in balancing
whether the need to reopen to correct the error outweighs the interests
of the public and heirs and devisees in the finality of the probate
proceeding.
An individual suggested certain clarification edits, including
adding to Sec. 30.241 that a rehearing is for the same probate and
adding to Sec. 30.243 that reopening petitions are filed with the
judge.
Response: The final rule incorporates these suggested edits.
The same individual suggested adding a new paragraph (c) to Sec.
30.245, regarding the legal standard for reopening, to require the
judge to notify interested parties of a determination to reopen.
Response: The judge notifies interested parties under Sec.
30.248(c) of the final order. This final rule provision is broader than
the current regulations, which require notification only to affected
parties.
This individual also suggested adding to Sec. 30.246(c)(6), that
in considering the interest in administrative finality the judge should
consider ``a concise justification of why and how the information
provided in support of the petition to reopen would lead the judge to
determine that the need to correct the error outweighs the interests of
the public and heirs or devises in the finality of the probate
proceedings.''
Response: The final rule does not add this additional language
because the substance of the suggested language is already set out in
paragraphs (a) and (b), as well as the introductory language in
paragraph (c) of Sec. 30.246.
The individual commenter expressed agreement with Sec.
30.248(b)(2)(iii) and recommended adding a requirement to suspend any
changes to title to the underlying property while the reopening
procedures are pending.
Response: The final rule states that the judge will suspend further
distribution of the estate or income during the reopening proceedings,
if appropriate.
K. Correction of Non-Substantive Errors in Probate Decision (Sec.
30.250)
A Tribe expressed support for authorizing BIA to make non-
substantive corrections to a probate decision but noted that OHA should
have final authority over any corrections.
Response: Under the proposed and final provisions, BIA contacts OHA
in all cases to issue a correction to a probate decision.
Another Tribe expressed general support for allowing OHA to address
typographical and other non-substantive errors in a probate decision
without reopening a probate case, but recommended clearly defining what
would be a ``non-substantive error.''
Response: The regulation at Sec. 30.250 states that errors are
non-substantive if they are merely typographical, clerical, or their
correction would not change the distribution of a decedent's property.
[[Page 72072]]
L. Inventory Corrections: New Property Added After Probate Decision
(Sec. 15.404/Sec. 30.251) and Incorrectly Included Property (Sec.
15.405/Sec. 30.252)
A Tribe supported the proposed process for reconsideration of a
distribution order directing distribution of additional property or
modifying distribution, rather than requiring parties to appeal a final
order.
Response: The final rule includes the proposed process for
reconsideration of the distribution order and clarifies that if an
interested party raises an inventory dispute in the petition for
reconsideration, the judge may order that the distribution order be
vacated and remand BIA's petition to the BIA to resolve the inventory
dispute. See Sec. 30.253(f)
An individual stated that the regulations that were in place prior
to the enactment of AIPRA worked fine by allowing for administrative
modifications.
Response: The regulations that were in place prior to the enactment
of AIPRA are no longer relevant because enactment of AIPRA changed the
legal landscape.
An individual stated that the probate decision should include
verbiage stating that if any other property is later discovered that
should have been part of the estate, then it must be distributed
according to the decision, rather than having to reopen the case to add
property.
Response: Under AIPRA, property may pass differently depending on
whether the property constitutes greater than or less than 5% of
undivided interests. Specific will language, renunciations, special
statutes, or approved Tribal probate codes may also lead to property
passing differently than set out in a decision. Judges direct
distribution of property specifically identified in the inventory.
Adopting the approach suggested by the commenter would put BIA, rather
than the judge, in the position of having to determine the appropriate
distribution.
An individual suggested adding a deadline for petitions to add or
omit property from the inventory.
Response: The final rule does not adopt this suggestion because
imposing a limitation would result in inaccurate distributions and
property that is never distributed.
An individual suggested adding ``and/or minerals only estates''
following ``trust or restricted land'' in Sec. 15.404(a)(1).
Response: The final rule does not adopt this suggestion because
minerals only estates are already included in ``trust or restricted
land'' for purposes of this section.
An individual stated that ``trust or restricted property'' is used
in Sec. 30.251 for the first time in the proposed rule and suggested
using ``trust or restricted land'' for consistency.
Response: The current regulations and final rule define both
``trust property'' and ``restricted property.'' ``Trust land'' is used
in some instances to distinguish from ``trust property'' because
``trust property'' includes personalty.
An individual requested clarification of the phrase ``a
certification that all interested parties have been associated to the
case and their names and addresses are current'' that appears in Sec.
15.404(a)(5), Sec. 15.405(a)(4), Sec. 30.251(b)(5), and Sec.
30.252(b)(4).
Response: The certification the commenter is inquiring about is
certification from the BIA to OHA that all the interested parties have
been associated to (i.e., identified as interested parties in) that
particular case in the Department's probate system. No change was made
to the rule to clarify because the language relates to an internal
Departmental procedure.
An individual noted that Sec. 30.252 appears to repeat the process
covered in Sec. 15.405(a).
Response: Part 15 addresses BIA processes, while Part 30 addresses
OHA processes; each has a role in the process as set out in the
applicable part.
An individual suggested an edit to Sec. 30.252(b) to clarify who
is petitioning for the removal of property and who is reviewing the
petition.
Response: The final rule changes the pronoun ``it'' to ``BIA'' to
clarify that BIA removes the property then petitions OHA for an order
addressing any changes in distribution resulting from the correction.
An individual requested adding a provision to Sec. 30.252(d)
requiring BIA to suspend further distribution of the estate during
reopening and suspend any changes to title to the underlying property
during the reopening proceeding.
Response: The Department determined that the suspension of the
estate distribution while awaiting OHA's determination is more suited
to internal procedures and is considering possible modifications
therein.
An individual requested adding a provision to Sec. 30.252 to
require the judge to notify interested parties of the determination to
reopen.
Response: Notifications to interested parties are provided in Sec.
30.252(e).
An individual provided a personal account of a probate in which
they believe errors in the inventory of decedent's land resulted in
loss of an inheritance.
Response: The procedures in these regulations provide safeguards to
allow for corrections to estate inventories.
M. Purchase at Probate (Subpart M)
An individual stated that changes to the purchase at probate
process in the regulations must be preceded by substantive amendments
to AIPRA.
Response: AIPRA's existing provisions authorize purchase at
probate, which these regulations implement.
A commenter stated that the proposed rule would eliminate the right
of ``eligible purchasers'' to notice when OHA receives a request to
purchase at probate and would put the onus on them to tell BIA that
they wish to be told of such purchase offers. The commenter objected
saying the approach undermines basic concepts of justice and fair play.
Another individual commenter also stated that all eligible purchasers
should be kept notified by mail.
Response: Neither the proposed nor final rule would eliminate the
right of eligible purchasers to notice; rather, the proposed and final
rule add an opportunity for co-owners to receive mailed notice when
they otherwise would not have. Mailed notice of the probate hearing
includes an attached inventory of a decedent's interests in trust or
restricted land, and notifies recipients of the possibility of purchase
at probate of those interests. See Sec. 30.214(g). AIPRA requires that
such notice be mailed only to three groups: Eligible heirs, other
devisees, and the Indian Tribe with jurisdiction over the interest. See
25 U.S.C. 2206(o)(4).
<bullet> An heir is any individual or entity eligible to receive
property from a decedent in an intestate proceeding.
<bullet> A devisee is a person or entity that receives property
under a will.
An ``eligible purchaser'' by contrast, is one of the following:
<bullet> An heir or devisee who is receiving an interest in the
same parcel of land;
<bullet> Any co-owner,
<bullet> The Tribe with jurisdiction over the parcel containing the
interest, or
<bullet> The Secretary on behalf of the Tribe. See 25 U.S.C
2206(o)(2).
Co-owners are eligible purchasers, but are heirs only in certain
limited circumstances. In cases in which the co-owners are also heirs,
the co-owners will receive mailed notice (of both the hearing and the
opportunity to purchase). If co-owners are not heirs, OHA is not
statutorily required to send written notice to those co-owners and
doing so would significantly delay the
[[Page 72073]]
resolution of cases. See 25 U.S.C. 2206(o)(4)(B). Instead, under the
current process and the proposed and final rule process, co-owners who
are not heirs receive notice of a probate proceeding through posting.
The proposed and final rule provide an opportunity for co-owners who
are not heirs to receive notice. Co-owners may receive mailed notice
simply by notifying BIA in writing that they wish to receive it. See
Sec. 30.413(b)(5). This opportunity for notice is beyond what is
required by the statute and what is provided for in the current
regulations.
An individual commenter expressed concern with the proposed rule's
approach to consent for purchase at probate in Sec. 30.403, noting
that the proposed rule would place the responsibility on the heir or
devisee to state their unwillingness to sell the property.
Response: The final rule adds provisions to make clear that the
heir or devisee must affirmatively consent in order for a purchase at
probate to occur (rather than state their unwillingness to sell the
property to stop a purchase at probate from occurring). The final rule
also explicitly states that consent may not be presumed.
An individual objected to the ability of the Tribe to purchase
without consent when decedent's interest at the time of death was less
than 5 percent of the entire undivided ownership of the land. This
individual also opposed that the Secretary can give Tribes the
resources to purchase the interest but does not extend that financial
support to individual heirs and devisees. Another individual also
stated that it is not fair to allow the Secretary to provide financial
assistance only to the Tribe to purchase at probate and not individual
heirs and devisees.
Response: The provision allowing the Tribe to purchase without
consent when the decedent's interest at the time of death was less than
5 percent of the entire undivided ownership of the land and the
provision allowing the Secretary to provide resources to the Tribe for
the purchase are statutory provisions that are not being changed by
these regulations. See 25 U.S.C. 2206(o)(5). Under the statute and
regulations, if the heir or surviving spouse is a member of or eligible
for membership in the Tribe, then consent is required. No statutory
authority exists for the Secretary to provide resources to individuals
who wish to purchase property at probate.
An individual asked whether purchase at probate requires a majority
consent of the heirs and devisees or if each individual heir and
devisee must consent to sell his or her interest.
Response: Each heir and devisee must consent for their interest to
be purchased at probate, under both the current regulations and this
final rule.
A Tribe stated that the regulations should apply the valuation of
mineral interests used in Interior's Land Buy-Back Program to purchase
at probate of minerals-only interests.
Response: Under AIPRA, a judge may not approve a purchase at
probate for less than fair market value of the real property interest.
See 25 U.S.C. 2206(o)(4)(A). Interior's Land Buy-Back Program for
Tribal Nations is a specific time-limited program that is working under
particular authorizations which do not apply to probate.
An individual stated that individual Indians who are members of the
Tribe with jurisdiction over the land and who own a majority of the
interests in a tract or the largest individual interest should have
either the first option to purchase or a right of first refusal to
purchase any other undivided interest in the tract.
Response: Individuals who own an undivided interest in a tract of
land can seek to purchase their co-owners' interests at any time,
outside of probate. Purchase at probate provides no benefit to co-owner
purchasers over purchasing during the decedent's lifetime, as each
seller's consent is still required. AIPRA does not provide authority
for the regulations to grant a first option to purchase or right or
first refusal to Tribal members. AIPRA does at times allow the heir or
devisee to select the purchaser, however. See, e.g., 25 U.S.C.
2206(o)(3)(B).
An individual stated that the U.S. Government should ensure that
heirs are aware of Tribal governments' ability to purchase property and
outline the heirs' right to oppose the sale.
Response: AIPRA provides that the Tribe with jurisdiction is an
eligible purchaser. The judge will ensure that heirs or devisees are
aware of the purchase process through written decisions and orders
issued in a particular case. The judge will notify heirs or devisees as
to whether consent is required. Heirs or devisees who disagree with a
finding that their consent to a purchase is not required can challenge
that finding by seeking rehearing.
This individual asserted that her Tribe does not have the authority
to participate in purchase at probate because the Tribe's constitution
includes a provision stating that the Tribe may not regulate the
inheritance of allotted lands within the Tribe's jurisdiction.
Response: A Tribe's participation in purchase at probate as an
eligible purchaser is substantively distinct from a Tribe's action to
regulate the inheritance of property.
N. Miscellaneous
One individual stated that the proposed rule's attempt to define
how trust personalty will be distributed in Sec. 30.507 is an
impermissible attempt to address a defect in the legislation through
regulations.
Response: The proposed and final rule at Sec. 30.507 fill a gap
using the Secretary's authority where the statute is silent.
A Tribe expressed support for the proposed change clarifying joint
tenancy will be presumed in Sec. 30.501 where a testator devised their
interest to more than one person.
Response: The final rule includes this proposed change.
One individual asked how BIA and OHA identify the property that is
included in the estate, and whether it includes land and mineral rights
and IIM accounts.
Response: In preparing for the probate process, BIA checks the
system of record for land, which includes all trust or restricted land
and mineral interests, and checks the Trust Funds Accounting System
(TFAS) to determine the IIM account assets on record held by decedent.
A commenter stated that there should be language in the regulations
for how a valuation is conducted and the expertise needed to issue a
valuation.
Response: These regulations are specific to probate; in this
context, valuation is relevant to purchase at probate. The final rule
adopts the proposed rule's language at Sec. 30. 411(a) requiring
compliance with USPAP or other approved valuation method.
One Tribe and one individual recommended establishing and enforcing
timelines for completion of the probate process to improve timeliness.
Response: The completion of a probate is dependent on many factors
that are outside of BIA and OHA's control including the cooperation of
the family in providing documentation for the probate file. These
factors, along with the varying levels of complexity among probate
cases prevent the Department from imposing specific timeframes.
An individual requested the regulations include a policy to protect
individual Indians' property from being taken by Tribal governments and
others and noted that the BIA mission includes protection of trust
assets of American Indians.
[[Page 72074]]
Response: The BIA strives to meet its mission in all aspects of the
services it provides to individual Indians and Tribes. To the extent
that the commenter is requesting that BIA refuse to allow Tribes to
purchase interests at probate, the Department is unable to adopt this
suggested approach because it would be contrary to direction provided
by Congress in AIPRA.
A few individuals stated that Federal policy is being geared to
benefit Tribes over individual Indians.
Response: The final rule does not benefit Tribes over individual
Indians in any manner beyond what is required to implement the statute.
An individual suggested that the Federal Government should provide
ongoing information about AIPRA to Tribal citizens.
Response: The Department provides information on AIPRA and the
probate process at <a href="https://www.bia.gov/bia/ots/dop/your-land">https://www.bia.gov/bia/ots/dop/your-land</a>.
A Tribe requested confirmation that the rule does not affect its
Secretarially approved inheritance code.
Response: These regulatory changes do not affect Secretarially
approved Tribal probate codes. The Department intends to continue
honoring and applying those Secretarially approved Tribal probate
codes.
An individual requested adding to Sec. 15.202(b)(6), addressing
what must be included in the probate file if the estate includes only
cash, provisions similar to (a)(12) (``Documentation of any payments
made on requests filed under the provisions of Sec. 15.301 [Funds for
funeral services]'') and (a)(13) (``All the documents acquired under
Sec. 15.105'').
Response: The final rule adds these provisions as suggested.
A commenter stated that a copy of the probate file should be sent
to each interested party along with the notice of hearing.
Response: This comment relates to Sec. 15.504 in the current
regulations, which was not proposed for change and is not being
changed. The Department allows interested parties access to probate
files, but does not automatically send copies of the files to every
interested party because doing so would not be efficient and would risk
disclosure of personally identifiable information.
An individual stated that BIA should have to correct their errors
in front of affected family and the judge.
Response: Property is not added or removed to an estate as a result
of corrections of mistakes on inventories under this section, but
because of a situation such as where the decedent inherits additional
property or there was a probate order change for a predeceased
decedent.
A few individuals commented with requests for BIA to store wills or
assist individuals with writing wills. One individual asked how BIA
obtains access to wills to probate them.
Response: These regulations do not address storage or writing of
wills. BIA no longer assists individuals with writing wills and relies
on family members to provide the decedents' wills. It is each
testator's choice to communicate to family members where the will is
located and how to gain access to it.
A commenter stated that interested parties have a right to legal
counsel but many do not have access to legal counsel either because
they cannot afford or cannot find counsel with experience in the field
of Federal probate. This commenter stated that the lack of access to
counsel combined with the complexity of Indian probate limits due
process.
Response: Nothing in these regulatory changes affects interested
parties' right or ability to engage legal counsel in a probate case.
OHA makes every effort to provide due process to interested parties,
including unrepresented parties, in probate cases.
Several individuals commented on aspects of AIPRA, such as the
single heir rule and whether adopted children should be considered
heirs, that are not affected by these regulations.
Response: Nothing in these regulatory changes affects the single
heir rule or whether adopted children are considered heirs. The
Department encourages individuals who would like to provide their trust
or restricted property to certain people to either write a will or
convey that property through a gift deed during their lifetime;
otherwise, the land will pass by intestate succession according to
applicable law.
IV. Overview of Final Rule
The Department is finalizing revisions to its regulations governing
probate to provide due process while allowing probate cases to be
closed so that distribution to heirs and devisees may occur more
quickly. 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 final rule,
aims to provide certainty for families and future generations more
expeditiously.
A. Summary of Final Rule
This final rule makes a number of changes throughout the probate
regulations to eliminate ambiguities and procedural delays.
Specifically, the rule:
<bullet> Overhauls the process and criteria for summary probate
proceedings, to establish a process for very small estates, to include
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.
<bullet> Eliminates the need for the judge to determine the status
of eligible heirs or devisees as Indian when not relevant to the
probate decision;
<bullet> Allows OHA to issue a correction order to correct non-
substantive and typographical errors without reopening the probate
case;
<bullet> Revises processes for adding and removing property from an
estate inventory when it is discovered after issuance of the probate
decision that additional property must be added to an estate inventory
or that property was incorrectly included in the estate inventory, and
revises processes for challenging these types of decisions through
reconsideration rather than appeal to the IBIA;
<bullet> Allows heirs and devisees to renounce their interests at
hearings (having their written declarations acknowledged before a
judge) and allows 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 final rule also includes revisions to expand notice to
interested parties to provide that, in addition to mailing notice to
heirs and devisees and others listed in Sec. 30.114, OHA:
<bullet> Will post notice of formal probate proceedings on its
website;
<bullet> Will physically post notice at the agency location or, if
the agency office is closed or inaccessible, at a conspicuous location
near the agency; and
<bullet> May cause notice to be published in a local newspaper or
other publication if the judge determines that additional notice is
appropriate.
The rule's requirement for OHA to post on its website accommodates
the increased use of telephonic and other alternatives to in-person
hearings, which are occurring and are anticipated
[[Page 72075]]
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 final rule clarifies terminology and states 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 rule delineates:
<bullet> 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;
<bullet> The evidence a judge may rely on to presume that an
individual has died and their date of death;
<bullet> 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;
<bullet> Who receives personal, mailed notice of a formal probate
proceeding and how public notice is posted;
<bullet> Rehearing and reopening processes and how they relate to
each other;
<bullet> 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;
<bullet> 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.
The final rule also overhauls 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. This final
rule instead sequences the purchase at probate process to allow the
probate to be closed, while the purchase at probate continues, as
follows:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> BIA obtains the appraisal/valuation.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> OHA notifies parties of the successful bid.
<bullet> The successful bidder pays for the interest purchased and
the interest transfers.
<bullet> 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. Changes From Proposed Rule to Final Rule
The final rule makes the following changes to the proposed rule.
------------------------------------------------------------------------
Change final rule makes to
Section Topic proposed rule
------------------------------------------------------------------------
Sec. 15.202(b)....... Items included in Adds a missing word ``in''
the probate file. in the introductory
language of paragraph (b).
Adds new paragraphs (b)(7)
and (b)(8) in response to
comment.
Sec. 15.301(a)....... Funds for funeral Adds a new paragraph (a)(2)
services from regarding payment of
decedent's IIM funeral expenses by the
account. decedent's Tribe, in
response to comment.
Sec. 30.101.......... Definitions....... Adds a new definition for
``co-owner'' in response
to comment.
Deletes definition of
``extenuating
circumstances'' because
the provision in which
that phrase was used has
been deleted in response
to comment.
Deletes from definition of
``interested party'' the
phrase ``except for
potential or actual heirs
who may or will inherit
solely as co-owners of an
allotment'' because that
was removed from Sec.
30.114 in response to
comment.
Sec. 30.114.......... Notice to co- Deletes proposed provision
owners. requiring potential heirs
who may inherit solely as
co-owners to file a
request for notice, in
response to comment.
Sec. 30.180.......... Renunciations..... Adds new paragraph (b) to
make explicit that
entities may renounce, in
response to comment.
Sec. 30.183.......... Renunciation...... Replaces phrase in
paragraph (b) with newly
defined term ``co-owner,''
the definition for which
was added in response to
comment.
Sec. 30.186.......... Renunciation...... Adds reference to a
``Tribal resolution'' to
make explicit how a Tribe
may renounce, in response
to comment.
Sec. 30.211.......... Public notice of Adds a new paragraph (b) to
formal probate provide that a judge may
proceeding. also cause notice to be
published in a local
newspaper, in response to
comment. (Updated
appropriate citations)
Revises proposed paragraph
(e) (final paragraph (f))
to require physical
posting at the agency or,
if posting at the agency
is not possible because
the agency office is
closed or inaccessible,
posting in a conspicuous
place near that agency, in
response to comment.
[[Page 72076]]
Sec. 30.214.......... Contents of notice Adds reference to Federal
regarding law or Secretarially
purchase at approved Tribal probate
probate. codes.
Sec. 30.241.......... Rehearing......... Adds a clarification that
successive petitions may
not be filed ``in the same
probate case'' in response
to comment.
Sec. 30.243.......... Reopening......... Adds in paragraph (a) that
the petition for reopening
must be filed with the
judge.
Sec. 30.248.......... Decision on Clarifies in paragraph
reopening. (a)(2) that the petition
may be summarily dismissed
if it ``raises issues or
objections that were
previously addressed''
rather than requesting the
same relief, for
clarification.
Updates citation in
paragraph (a)(5).
Sec. 30.251.......... Identification of Clarifies in paragraph
additional (e)(4) that the right of
property after reconsideration must
probate decision. allege an error in the
inventory of additional
property, rather than the
original inventory.
Sec. 30.252.......... Identification of Clarifies that BIA removes
incorrectly property from the estate
included property inventory in paragraph
after probate (b).
decision.
Sec. 30.253.......... Reconsideration of Adds a new paragraph (f) to
distribution clarify that the judge may
order. vacate the distribution
order and remand to the
BIA.
Clarifies in final
paragraphs (g) and (h) the
``final order on
reconsideration'' to
distinguish from the
distribution order.
Sec. 30.401.......... Who may purchase Replaces phrase with the
at probate. newly defined term ``co-
owner,'' the definition
for which was added in
response to comment.
Sec. 30.404.......... Consent in Adds new paragraphs (b)
purchase at through (d) to clarify how
probate. an heir or devisee may
consent to purchase at
probate, that consent will
not be presumed, and that
an heir or devisee may
withdraw consent any time
before the purchase is
final.
Sec. 30.409.......... Effect of purchase Adds clarification that the
at probate on decision or distribution
distribution. order will identify the
interest that is subject
to a pending request for
purchase at probate.
Sec. 30.410.......... Continuation of Corrects a typographical
purchase at error to change ``approval/
probate process. valuation'' to ``appraisal/
valuation.''
Sec. 30.413.......... Potential bidders Replaces phrase in (b)(5)
in purchase at with the newly defined
probate. term ``co-owner,'' the
definition for which was
added in response to
comment.
Sec. 30.418.......... Payment for Clarifies the successful
purchase at bidder ``must'' make
probate. payment.
Sec. 30.506.......... Law applicable Replaces the phrase ``co-
when decedent owners of the parcel'' in
dies intestate. (b)(1) and (2) with the
newly defined term ``co-
owners,'' the definition
for which was added in
response to comment.
------------------------------------------------------------------------
C. Crosswalk of Current Regulation to New Regulation
The following chart provides a high-level crosswalk of the current
regulatory provisions as compared to the new and revised provisions
established by this final rule. Sections not listed in the ``current''
column are unaffected by this final rule.
In 25 CFR part 15:
------------------------------------------------------------------------
Current Sec. New Sec. Summary of changes
------------------------------------------------------------------------
15.202 What items 15.202 What items Redesignates paragraphs and adds a
must the agency must the agency new paragraph (b) to establish a
include in the include in the more limited universe of
probate file? probate file? 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 15.301 May I Increases the amount that may be
receive funds receive funds requested and approved for
from the from the distribution from a decedent's
decedent's IIM decedent's IIM IIM account to pay for funeral
account for account for expenses from $1,000 to $5,000.
funeral funeral Also deletes requirement for the
services? services? 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?
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:
------------------------------------------------------------------------
Current Sec. New Sec. Summary of changes
------------------------------------------------------------------------
30.100 How do I 30.100 How do I Updates citations (no substantive
use this part? use this part? change).
30.101 What 30.101 What Deletes definitions of ``BLM'' and
definitions do I definitions do I ``de novo review'' because they
need to know? need to know? 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, and ``summary probate
proceeding'' to reflect the new
approach to these proceedings.
Adds definitions for ``co-owner,''
``distribution order,'' ``home
agency,'' ``joint tenancy,''
``lineal descendant,'' ``order,''
``Petition to Complete Purchase
at Probate,'' and ``tenants in
common.''
[[Page 72077]]
30.114 Will I 30.114 Will I Deletes provisions in current
receive notice receive notice paragraph (b) regarding
of the probate of the probate requesting a formal probate
proceeding? proceeding? 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.
30.123 Will the 30.123 Will the Adds ``if relevant'' so that a
judge determine judge determine judge is not required to
matters of matters of determine the status of eligible
status and status and heirs or devisees as Indian if
nationality? nationality? their status is not relevant in
the probate case.
30.124 When may a 30.124 When may a Revises to list specific evidence
judge make a judge make a that will support a presumption
finding of finding of that an heir, devisee, or person
death? death? 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 30.129 May a Redesignated to follow other
judge reopen a judge reopen a section on correcting errors in
probate case to probate case to ``Judicial Authority'' subpart.
correct errors correct errors No substantive change.
and omissions? and omissions?
N/A 30.125 May a New section.
judge order that
a property
interest be
partitioned as a
result of a
devise?
30.235 What will 30.235 What will Adds ``if relevant'' so that a
the judge's the judge's judge's decision need not include
decision in a decision in a the status of eligible heirs or
formal probate formal probate devisees as Indian if their
proceeding proceeding status is not relevant in the
contain? contain? probate case.
N/A 30.250 May a New section.
correction order
be issued to
correct
typographical
and other non-
substantive
errors?
30.126 What 30.251 What Clarifies what information BIA
happens if happens if BIA must provide to OHA in support of
property was identifies the petition to add the property,
omitted from the additional and provides that the judge will
inventory of the property of a issue a distribution order of the
estate? decedent after a additional property.
decision is
issued?
30.127 What 30.252 What Clarifies what information BIA
happens if happens if BIA must provide to OHA in support of
property was identifies that the petition to remove the
improperly property was property, and provides that the
included in the incorrectly judge will issue a distribution
inventory? included in a order that addresses any
decedent's modifications to the distribution
inventory? of the decedent's property
resulting from the correction of
the inventory.
N/A 30.253 What New section. Adds a process to
happens if a allow interested parties to seek
request for reconsideration of the
reconsideration distribution order.
of a
distribution
order is timely
made?
Subpart G-- Subpart M-- Revises this subpart overall to
Purchase at Purchase at streamline the process for
Probate Probate purchasing decedent's interests
at probate using the statutory
authority in the American Indian
Probate Reform Act.
30.160 What may 30.400 What may Adds a provision regarding
be purchased at be purchased at purchase of minerals-only
probate? probate? 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 purchase at
probate? probate?
30.162 Does 30.402 Does No change.
property property
purchased at purchased at
probate remain probate remain
in trust or in trust or
restricted restricted
status? status?
30.163 Is consent 30.403 Is consent Adds that, to purchase any
required for a required for a interest included in an approved
purchase at purchase at consolidation agreement, the
probate? probate? consent of the recipient of the
consolidated interest is
required.
Adds new paragraphs (b) through
(d), establishing procedures for
heirs and devisees to consent to
a purchase at probate, that
consent will not be presumed, and
that consent may be withdrawn.
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 30.404 How do I Changes the deadline for filing a
I do to purchase initiate a purchase request from before
at probate? purchase at issuance of the final probate
probate? decision or order to instead
30.405 When may I before the end of the first
initiate a probate hearing.
purchase at
probate?
N/A 30.406 May I New section.
withdraw my
request to
purchase at
probate?
N/A 30.407 How will New section.
OHA address
requests to
purchase at
probate?
30.165 Who will 30.408 What will Revisions to incorporate the
OHA notify of a OHA include in purchase at probate process into
request to the probate the final probate decision or
purchase at decision or reconsideration order, since that
probate? reconsideration final decision and order are
30.166 What will order when a provided to the heirs or
the notice of purchase at devisees, BIA, and anyone who has
the request to probate is submitted a request to purchase.
purchase at pending?
probate include?
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 New section.
the purchase at
probate process
continue after
the decision or
reconsideration
order is issued?
30.167 How does 30.411 How will Adds that BIA will obtain the
OHA decide the interests to appraisal or other fair market
whether to be purchased at valuation and that any appraisal/
approve a probate be valuation must be made on the
purchase at valued? basis of the fair market value as
probate? 30.416 How does of the decedent's date of death.
OHA decide Adds that the appraisal/valuation
whether a bid is must state or include a
successful? 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 (see 30.419, Combines information on allocating
the judge listed below) proceeds with information on OHA
allocate the issuing the order approving the
proceeds from a sale.
sale?
[[Page 72078]]
30.169 What may I 30.415 What may I Expands who may object to a fair
do if I do not do if I do not market value determination to
agree with the agree with the include any party who may be
appraised market determination of affected by the determination.
value? fair market Combines time for filing an
value in the objection (30 days) and filing
Order to Submit supporting documentation (15
Bids? 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 30.423 What may I Replaces process for objecting to
do if I disagree do if I disagree the judge with a process for
with the judge's with the judge's appealing to IBIA.
determination to determination to
approve a approve or deny
purchase at a purchase at
probate? probate.
30.171 What 30.412 What will Clarifies that OHA issues an Order
happens when the OHA do when it to Submit Bids to all potential
judge grants a receives BIA's bidders, and that this occurs
request to notification after the fair market value has
purchase at that an been determined.
probate? appraisal/
valuation has
been completed?
30.417 How does
the 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 New section.
be contained in
the Order to
Submit Bids?
30.172 When must 30.418 When must No substantive change.
the successful the successful
bidder pay for bidder pay for
the interest the interest
purchased? purchased?
30.173 What 30.419 What Adds information on allocation of
happens after happens after the proceeds of the sale.
the successful the successful
bidder submits bidder submits
payment? payment?
30.174 What 30.420 What No substantive change.
happens if the happens if the
successful successful
bidder does not bidder does not
pay within 30 pay within 30
days? days?
30.175 When does 30.421 When does No substantive change.
a purchased a purchased
interest vest in interest vest in
the purchaser? the 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 New section.
the order
approving or
denying the
purchase at
probate become
final?
Subpart H-- Subpart H-- See below for specific sections.
Renunciation of Renunciation of
Interest Interest
30.180 May I give 30.180 May I give Adds clarification that entities
up an inherited up an inherited may renounce.
interest in interest in
trust or trust or
restricted restricted
property or property or
trust trust
personalty? personalty?
30.181 How do I 30.181 When may I Splits into two sections. Expands
renounce an renounce a when someone may renounce to
inherited devised or allow renunciation 30 days after
interest? inherited the probate decision is mailed,
interest? before the entry of an order on
30.186 How do I rehearing, or within 30 days
renounce an after mailing of the distribution
inherited for additional property.
interest? Expands the manner in which
30.188 What steps someone may renounce to allow
will the judge acknowledgment before either a
take if I notary or a judge, so that
designate a someone may renounce in person at
recipient? a hearing.
N/A 30.182 Who may New section. Specifies who may
renounce an renounce on behalf of an heir or
inherited devisee who dies before the
interest on hearing.
behalf of an
heir or devisee
who dies before
the hearing?
30.182 Who may 30.183 Who may Reorganizes these sections to
receive a receive a distinguish based on whether the
renounced renounced decedent had a will or not. No
interest in interest in substantive change.
trust or trust or
restricted land? restricted land
30.183 Who may if the land will
receive a pass pursuant to
renounced a valid will?
interest of less 30.184 Who will
than 5 percent receive a
in trust or renounced
restricted land? interest in
trust or
restricted land
if the land will
pass by
intestate
succession?
30.184 Who may 30.185 Who may Deletes paragraph (c) of the
receive a receive a current section, which says the
renounced renounced following, because it is not
interest in interest in directly relevant to the probate
trust trust process: ``The Secretary will
personalty? personalty? 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 the
designated designated designated recipient the
recipient refuse recipient refuse opportunity to refuse the
to accept the to accept the interest.
interest? interest?
30.186 Are 30.190 Are No change.
renunciations renunciations
that predate the that predate the
American Indian American Indian
Probate Reform Probate Reform
Act of 2004 Act of 2004
valid? valid?
30.187 May I 30.191 May I Revised when a written
revoke my revoke my renunciation becomes irrevocable
renunciation? renunciation? 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 Reorganizes to split into two
renounced happens if I do sections. No substantive change.
interest vest in not designate
the person who any eligible
renounced it? individual or
entity to
receive the
renounced
interest?
30.192 Does a
renounced
interest vest in
the person who
renounced it?
Subpart I-- Subpart I-- See specific sections below.
Summary Probate Summary Probate
Proceedings Proceedings
[[Page 72079]]
30.200 What is a 30.200 What is a Deletes that the supervising judge
summary probate summary probate may determine whether the
proceeding? proceeding? 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 30.206 What Changes the notice provided to be
a notice of a notice of the notice of the summary probate
summary probate summary probate decision and right to challenge
proceeding decision will the decision because the proposed
contain? the judge or ADM rule eliminates the option for a
provide? 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.
30.202 May I file 30.201 May I file Revises to disallow claims in
a claim or a claim in a summary probate proceedings
renounce or summary probate because the estate value is only
disclaim an proceeding? $300 or less.
interest in the
estate in a
summary probate
proceeding?
N/A 30.202 What will New section. Provides that OHA
happen when OHA determines the distribution of
receives the estates under summary probate
summary probate proceedings based on the
file? information included in the
probate file.
N/A 30.203 What will New section. Clarifies that if the
happen if the funds in the estate are
funds in the insufficient to provide all heirs
estate are or devisees with one cent, then
insufficient to the oldest heir or devisee
provide each receives all the funds.
heir or devisee
at least one
cent?
30.203 May I 30.204 May I Revises to eliminate the option
request that a request that a for requesting the summary
formal probate formal probate probate be conducted as a formal
proceeding be proceeding be probate proceeding because the
conducted conducted estate value is so small.
instead of a instead of a
summary probate summary probate
proceeding? proceeding?
30.204 What must 30.205 What must Reorganizes.
a summary a summary Deletes reference to a proposed
probate decision probate decision decision, because the judge
contain? contain? 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 30.207 How do I Deletes reference to ``de novo''
seek review of a seek review of a review.
summary probate summary probate Clarifies that BIA may also seek
proceeding? proceeding? review.
30.206 What 30.208 What Lengthens the time OHA has to
happens after I happens after I notify the agency that prepared
file a request file a request the probate file, all other
for de novo for review? affected agencies, and all
review? 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 30.209 What will Provides that OHA transmits the
happens if the judge or ADM official record back to the
nobody files for do with the agency originating the probate
de novo review? official record and lists what will be included
of the summary in the record.
probate case? 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 below.
Probate Probate
Proceedings Proceedings
30.210 How will I 30.210 How will I Reorganizes to group all mailed
receive personal receive personal (personal) notice into one
notice of the notice of the section and all public notice
formal probate formal probate into a separate section.
proceeding? proceeding? Clarifies that the will and
30.211 Will the 30.211 How will codicils will be mailed with the
notice be OHA provide notice of the proceeding.
published in a public notice of (Section 30.114 lists who
newspaper? the formal receives mailed notice of the
probate hearing).
proceeding? 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 that the judge may cause the
notice to be published in a local
newspaper or other publication 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.
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 if physical posting at
the agency office is not possible
because the agency office is
closed or inaccessible, then the
notice must be physically posted
at a conspicuous place near that
agency.
30.214 What must 30.214 What must Adds to paragraph (g) a
a notice of a notice of specification that the notice of
hearing contain? hearing contain? possibilities of purchase and
sale of trust or restricted
property will be ``in accordance
with Federal law or Secretarially
approved Tribal probate codes.''
30.238 May I file 30.238 May I file Specifies that you must be an
a petition for a petition for interested party to seek a
rehearing if I rehearing if I rehearing and the basis for your
disagree with disagree with request must be to correct a
the judge's the judge's substantive error. Expands on
decision in a decision in a what issues may be raised and
formal probate formal probate what evidence may be relied upon
hearing? hearing? in rehearing.
30.239 Does any 30.239 Does any No change.
distribution of distribution of
the estate occur the estate occur
while a petition while a petition
for rehearing is for rehearing is
pending? pending?
[[Page 72080]]
30.240 How will 30.240 How will Clarifies that the judge will
the judge decide the judge decide consider the petition for
a petition for a petition for rehearing as a petition for
rehearing? rehearing? reopening if not timely filed.
Adds provision allowing the judge
to summarily deny the petition
based on certain deficiencies.
30.241 May I 30.241 May I No substantive change. Moves
submit another submit another information regarding the judge's
petition for petition for jurisdiction to Sec. 30.242.
rehearing? rehearing?
30.242 When does 30.242 When does Includes information on when the
the judge's the judge's jurisdiction of the judge
order on a order on a terminates.
petition for petition for
rehearing become rehearing become
final? final?
30.243 May a 30.243 May a Deletes the chart and states by
closed probate closed probate whom and the circumstances in
case be case be which a closed probate case may
reopened? reopened? be reopened.
30.244 When must Splits provisions regarding
a petition for deadlines for filing petitions to
reopening be reopening to proposed Sec.
filed? 30.244 to simplify the deadline
30.245 What legal to one year after discovery of
standard will be the error.
applied to Clarifies that the 3-year
reopen a case? threshold is important only with
30.246 What must regard to the heightened legal
be included in a standard that is applied to the
petition for petition to reopen after 3 years.
reopening? Expands on what information must
be included in a petition for
reopening to justify reopening.
N/A 20.247 What is New section. Clarifies what issues
not appropriate or objections a petition may not
for a petition raise and what evidence a
for reopening? 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 30.248 How will Adds provision allowing the judge
the judge decide the judge decide to summarily deny the petition
my petition for my petition for based on certain deficiencies.
reopening? reopening?
30.245 What 30.249 What Combines two sections. No
happens if the happens when the substantive change.
judge reopens judge issues an
the case? order on
30.246 When will reopening?
the decision on
reopening become
final?
Subpart K-- Subpart N-- See affected sections below.
Miscellaneous Miscellaneous
30.250 When does 30.500 When does Redesignated. No change.
the anti-lapse the anti-lapse
provision apply? provision apply?
N/A 30.501 When is New section. Establishes that
joint tenancy joint tenancy will be presumed
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 that the
judge resolve judge will give priority to the
conflicts presumption of joint tenancy,
between the anti- such that the share of the
lapse provision deceased devisee will go to the
and presumption surviving devisees (rather than
of joint to the deceased devisee's
tenancy? descendants).
30.251 What 30.503 What Redesignated. No change.
happens if an happens if an
heir or devisee heir or devisee
participates in participates in
the killing of the killing of
the decedent? the decedent?
30.252 May a 30.504 May a Redesignated. No change.
judge allow fees judge allow fees
for attorneys for attorneys
representing representing
interested interested
parties? parties?
30.253 How must 30.505 How must Redesignated. No change.
minors or other minors or other
legal legal
incompetents be incompetents be
represented? represented?
30.254 What 30.506 When a Deletes chart. Reorganizes based
happens when a decedent died on whether the decedent died
person dies intestate before or after the date of
without a valid without heirs, AIPRA's enactment. Adds detail as
will and has no what law applies to how interests will be
heirs? to trust or distributed under the statute in
restricted each case, rather than just
property? citing the statutory provisions.
N/A 30.507 How will New section. Specifies how trust
trust personalty personalty is distributed in the
be distributed circumstance in which AIPRA
if a decedent applies but fails to state how
died intestate trust personalty is distributed:
on or after June If the decedent has no surviving
20, 2006, and spouse or eligible heirs or trust
the Act does not or restricted property over which
specify how the one and only one Tribe has
trust personalty jurisdiction.
should be
distributed?
------------------------------------------------------------------------
V. 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 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 rule in a manner consistent with these
requirements
B. Regulatory Flexibility Act
The Department of the Interior certifies that this 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 rule affects only individuals' estates and does not affect small
entities.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rulemaking under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This 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,
[[Page 72081]]
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.
D. Unfunded Mandates Reform Act
This 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 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.
E. Takings (E.O. 12630)
This 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.
F. 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.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this 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 section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
H. 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
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 rule
affects the probate of trust or restricted property held by
individuals, many or most of whom are likely Tribal members. The
Department therefore conducted Tribal consultation on this rule and has
included responses to Tribal input in Section III. Proposed Rule
Comments and Responses to Comments.
I. Paperwork Reduction Act
This 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 11/30/2021). 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.
J. National Environmental Policy Act
This 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.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
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 amends 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.
Subpart C--Preparing the Probate File
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.
[[Page 72082]]
(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.
(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.
(7) Documentation of any payments made on requests filed under the
provisions of Sec. 15.301.
(8) All the documents acquired under Sec. 15.105.
Subpart D--Obtaining Emergency Assistance and Filing Claims
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;
(2) You have not received sufficient funds from the decedent's
Tribe to pay the entire cost of the funeral arrangements; and
(3) 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.
* * * * *
Subpart E--Probate Processing and Distributions
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
[[Page 72083]]
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:
Authority: 5 U.S.C. 301, 503; 25 U.S.C. 9, 372-74, 410, 2201 et
seq.; 43 U.S.C. 1201, 1457.
Subpart A--Scope of Part; Definitions
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) Sec. Sec. 30.400 through 30.424 (purchases at probate);
(3) Sec. Sec. 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 definition of ``BLM'';
0
c. Adding in alphabetical order a definition for ``Co-owner''
0
d. Removing the definition of ``Decision or order (or decision and
order)'';
0
e. Adding in alphabetical order a definition for ``Decision'';
0
f. Removing the definition of ``De novo review'';
0
g. Adding in alphabetical order definitions for ``Distribution order''
and ``Home agency'';
0
h. Revising the definition of ``Indian probate judge (IPJ)'';
0
i. Adding in alphabetical order definitions for ``Joint tenancy'',
``Lineal descendant'', ``Order'', and ``Petition to Complete Purchase
at Probate'';
0
j. Revising the definition of ``Summary probate proceeding''; and
0
k. Adding in alphabetical order a definition for ``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.
* * * * *
Co-owner means any person who owns an undivided trust or restricted
interest in the same parcel in which the decedent owns an interest.
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
Subpart B--Commencement of Probate Proceedings
0
8. Revise Sec. 30.114 to read as follows:
[[Page 72084]]
Sec. 30.114 Will I receive notice of the probate proceeding?
If the case is designated as a formal probate proceeding, OHA will
send a notice of hearing to:
(a) Potential heirs and devisees named in the probate file;
(b) Those creditors whose claims are included in the probate file;
and
(c) Other interested parties identified by OHA
Subpart C--Judicial Authority and Duties
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) * * *
(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, consisting of Sec. Sec. 30.160
through 30.175.
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?
Subpart H--Renunciation of Interest
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:
(a) You are 18 years or older and not under a legal disability; or
(b) You are an entity.
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
[[Page 72085]]
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 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 co-owner;
(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 or Tribal resolution specifying the
interest to be renounced. The declaration must be signed by you and
acknowledged before a notary or judge. The Tribal resolution must be
approved by appropriate Tribal authorities.
(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
[[Page 72086]]
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 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:
[[Page 72087]]
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 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:
<a href="https://www.doi.gov/oha/organization/Ph.D">https://www.doi.gov/oha/organization/Ph.D</a>.
(d) The judge may also cause notice to be published in a local
newspaper or other publication if the judge determines that additional
notice is appropriate.
(e) 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.
(f) OHA may proceed with the hearing without physical posting of
the notice at an agency office if the notice is posted in a conspicuous
place near that agency office and physical posting at the agency office
was not possible due to the agency office being closed or inaccessible.
0
18. In Sec. 30.214, revise the introductory text and paragraph (g) to
read as follows:
Sec. 30.214 What must a notice of hearing contain?
The notice of hearing under Sec. 30.114 must:
* * * * *
(g) In estates for decedents whose date of death is on or after
June 20, 2006, include notice of the possibilities of purchase and sale
of trust or restricted property in accordance with Federal law or
Secretarially approved Tribal probate codes by heirs, devisees, co-
owners, a Tribe or the Secretary; and
* * * * *
0
19. In Sec. 30.235, revise paragraph (a)(2) to read as follows:
Sec. 30.235 What will the judge's decision in a formal probate
proceeding contain?
* * * * *
(a) * * *
(2) If relevant, state whether the heir or devisee is Indian or
non-Indian;
* * * * *
0
20. 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:
[[Page 72088]]
(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 in the same probate case.
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.
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 with the judge.
(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
21. Add Sec. Sec. 30.247 through 30.249 to read as follows:
* * * * *
Sec.
30.247 What is not appropriate for a petition for reopening?
30.248 How will the judge decide my petition for reopening?
30.249 What happens when the judge issues an order on reopening?
* * * * *
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 raises issues or objections that were previously
addressed in a rehearing order or reopening order;
(3) The petition raises only issues or objections by or on behalf
of an
[[Page 72089]]
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.
Subpart K--[Redesignated as Subpart N]
0
22. Redesignate subpart K, consisting of Sec. Sec. 30.250 through
30.254, as subpart N and revise the heading to read as follows:
Subpart N--Miscellaneous
Sec. Sec. 30.250 and 30.251 through 30.254 [Redesignated as
Sec. Sec. 30.500 and 30.503 through 30.506]
0
23. In newly redesignated subpart N, redesignate Sec. Sec. 30.250 and
30.251 through 30.254 as Sec. Sec. 30.500 and 30.503 through 30.506,
respectively.
Subpart J--Formal Probate Proceedings
0
24. Add new Sec. Sec. 30.250 through 30.253 to read as follows:
* * * * *
Sec.
30.250 May a correction order be issued to correct typographical and
other non-substantive errors?
30.251 What happens if BIA identifies additional property of a
decedent after the probate decision is issued?
30.252 What happens if BIA identifies that property was incorrectly
included in a decedent's inventory?
30.253 What happens if a request for reconsideration of a
distribution order is timely made?
* * * * *
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;
[[Page 72090]]
(3) Include the additional property in an existing or new
consolidation agreement;
(4) Allege an error in BIA's inventory of additional property 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 BIA 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:
(1) Object to the findings and conclusions of the distribution
order; or
(2) 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) If an interested party raises an inventory dispute in the
petition for reconsideration, the judge may order that the distribution
order is vacated and remand the BIA's petition to the BIA under Sec.
30.128 to resolve the inventory dispute.
(g) The judge will issue a final order on reconsideration which may
affirm, modify, or vacate the distribution order.
(h) On entry of a final order on reconsideration, 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.
(i) Neither BIA nor any interested party may file successive
petitions for reconsideration.
(j) 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.
Subpart K--[Reserved]
0
25. Add reserved subpart K.
0
26. 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?
[[Page 72091]]
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?
Subpart M--Purchase at Probate
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 co-owner;
(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:
(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 consent may be given either:
(1) During a hearing as part of the record; or
(2) In writing to OHA.
(c) An heir or devisee's failure to attend a hearing or respond to
an order will not be presumed to constitute consent.
(d) An heir or devisee may withdraw consent at any time before the
purchase is final.
(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.
(e) 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.
(f) 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
[[Page 72092]]
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.
The decision or distribution order will identify any property interest
that is the subject of a pending request for purchase at probate, and
that the property interest 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 appraisal/
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 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 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
[[Page 72093]]
(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 must make 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 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.
[…truncated; see source link]Indexed from Federal Register on December 20, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.