Fact Sheet 1:  What is AIPRA and How Does it Affect You?

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The American Indian Probate Reform Act (AIPRA) was enacted on October 27, 2004.  The Act amends the Indian Land Consolidation Act (ILCA) of 1983 and ILCA amendments of 2000.  Most parts of AIPRA that pertain to probate took effect on June 20, 2006.  Technical amendments were signed into law December 2, 2008.

AIPRA creates a uniform probate code for all reservations¹ across the United States.  The Act applies to all individually owned trust lands¹ unless a tribe has its own probate code. All tribal probate codes pertaining to trust property must be approved by the Department of Interior.  State laws no longer determine how trust lands on reservations¹ pass from one generation to the next for individuals who pass away on or after June 20, 2006. 

This is the first of 14 fact sheets explaining parts of AIPRA.  They have been developed with funding from the Community Outreach and Assistance Partnership Program of the Risk Management Agency of USDA.

Fact Sheet #1—What is AIPRA and how does it affect you?

This fact sheet (#1) provides a brief summary of each of the fact sheets in the series.  A chart that illustrates tribal, state, and federal jurisdiction on the various types of individually owned property is provided on page 4.  Included in the chart are trustproperty (undivided interests in land and Individual Indian Money (IIM) accounts) and non-trust property (checking or savings accounts and vehicles).

Fact Sheet #2—Fractionation:  Inheriting undivided interests

Many allotments can have more than 500 co-owners because with the passing of each generation, the number of persons who inherited undivided interests in these allotments has increased dramatically.  This is known as fractionation. 

Fact Sheet #2 explains how fractionation occurs and defines undivided interest. Illustrations show the fractionation that could occur when an undivided interest in trust lands is inherited by six generations of family members.

Fact Sheet #3—How reservation land is owned

Fact Sheet #3 explains the typical ways individuals own reservation land:  individually owned trust/restricted land or fee status land (also known as fee simple or fee patent land).  The various ways land can be titled by individuals is also described:   sole ownership, joint tenancy with right of survivorship and tenancy in common.

Fact Sheet #4—Your Individual Trust Interest (ITI) report:  How to read it

Fact Sheet #4 explains the meaning of the numbers and terms on an Individual Trust Interest (ITI) report.  You can obtain a copy of your ITI report from your local Bureau of Indian Affairs (BIA) Realty office or from a BIA Regional office. Use the form in Fact Sheet #4 to request your ITI Report from the appropriate regional office.

Fact Sheet #5—Who is eligible to inherit your trust lands and retain trust status?

Under AIPRA your trust land can retain trust or restricted status if it passes to eligible heirs.  Your heirs must meet the federal definition of eligible heirs and Indian if they are to inherit your land in trust or restricted status.  Fact Sheet #5 provides definitions of eligible heirs and Indian that are included in the AIPRA law.

Fact Sheet #6—Your undivided interest of 5% or more :  What happens if you pass away without writing a will?

If you pass away without writing a will, any trust or restricted land you own on any reservation¹ in the United States passes to your heirs under AIPRA. This federal law passes trust land to your heirs under different rules depending upon whether your undivided interest of an allotment is 5% or more (Fact Sheet #6) or less than 5% (Fact Sheet #7).

Fact Sheet #6 explains how your undivided interest of 5% or morein trust or restricted land is distributed to your heirs depending upon your marital status and whether you have children.

Fact Sheet #7—Your undivided interest of less than 5%:  What happens if you pass away without writing a will?

If you pass away without a written will and if you own an undivided interest of less than 5% in trust land your undivided interest would pass under the single heir rule.  More details about the single heir rule are provided in Fact Sheet #7.

Fact Sheet #8—What is a life estate?

Under AIPRA there are circumstances where your beneficiary receives a life estate in your trust property.  Fact Sheet #8 explains what a life estate is and the conditions under which AIPRA requires a life estate for trust property for a surviving spouse.

Fact Sheet #9—Writing a will

A will is a written instrument that describes how you want your land and other property distributed after your passing.  Under AIPRA, writing a will becomes very important for Indians.  Your will gives you control over who receives your property and avoids a “forced sale”of an undivided interest in a parcel of less than 5%.

A written will is not effective during your lifetime.  Only upon your passing does your will become effective.  You can change your will as many times as you want throughout your life.  Fact Sheet #9 answers several important questions about written wills.

Fact Sheet #10—Purchase options at probate

Under AIPRA, if you pass away without a will, one of your co-owners or tribe, may petition the probate court to purchase your undivided interest in trust or restricted land.  Fact Sheet #10 explains the process if co-owners want to purchase your interest during probate.

Fact Sheet #11—Partitioning an allotment

AIPRA allows tribes or a co-owner to request the partition of a highly fractionated parcel. ¹ A highly fractionated parcel is defined as one that has:

• 50 - 99 co-owners with none holding an undivided interest greater than 10%; or,

• 100 or more co-owners.

A partition under AIPRA removes all co-owners, consolidating 100% interest in the parcel back to the indvidual or tribe seeking the partition.  Fact Sheet #11 explains partitioning rules under AIPRA.

Fact Sheet #12—Ways to avoid further fractionation of reservation land

Tools to reduce fractionation of trust or restricted lands include gifting, selling, or exchanging interests with co-owners.  Fact Sheet #12 describes ways to use these tools.

Fact Sheet #13—Your Individual Indian Money (IIM) account:  What happens to your money if you pass away without writing a will?

Individual Indian Money (IIM) accounts are administered by the Office of the Special Trustee.  IIM accounts contain money that allottees and co-owners receive for leases, timber sales, or other activities on land in which they may have an interest.  Fact Sheet #13 describes who will receive the money in your IIM account (if you have one), if you pass away without a written will.

Fact Sheet #14—Definitions

Fractionation, partitioning, eligible heirs, Individual Trust Interest (ITI) report, Individual Indian Money (IIM) account, life estate, tenancy in common, joint tenancy and many other terms that are used in the Fact Sheets are explained in Fact Sheet #14.  Words that are defined in Fact Sheet #14 are in italics in Fact Sheets # 1 – 13.

Acknowledgements

We wish to express appreciation to the Montana and Idaho Reservation Extension agents and Reservation Extension student assistants on the Blackfeet, Fort Belknap, Fort Hall, and Fort Peck reservations for their assistance in reviewing the fact sheets and presenting the information on their home reservations. This MontGuide has also been reviewed with the assistance of students from the Alexander Blewett III School of Law at the University of Montana.

Co-authors:

Marsha A. Goetting
Extension Family Economics Specialist
Department of Agricultural Economics and Economics
Montana State University

Kristin Ruppel
Department of Native American Studies
Montana State University

This publication was supported by the Community Outreach and Assistance Partnership Program of the Risk Management Agency USDA number 051E08310186.]

Disclaimer

The information appearing in this fact sheet is presented for informational purposes only.  The objective of the fact sheet is to help you develop an understanding of the American Indian Probate Reform Act (AIPRA).  The contents should not be considered as legal advice or be used as such.  For legal information specific to your situation, contact appropriate legal counsel with your tribe or an attorney.

Future change in laws cannot be predicted and statements in this fact sheet are based solely on the rules and regulations in force on the date of publication.

What laws control the distribution of your personal and real property when you pass away without a written will²?

¹ Except Alaska, the Five Civilized Tribes, and Osage.
² For individuals who pass away on or after June 20, 2006.  Use this information as a guide only.  For specific legal advice about your situation contact an attorney whose practice includes Indian law.

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