12.02.080 General Guidelines for Estate Distribution and Small Estates

(a) Persons without a Will. The procedure in Subchapter 3 will apply for distribution of an estate without a Will.

(b) Persons with a Will. The procedure in Subchapter 4 will apply for distribution of an estate with a Will.

(1) Basis for Using Small Estate Process. If a person dies and leaves an estate whose value is less than $20,000.00 and which does not include any interests in real property, the estate may be settled with minimal Tribal Court involvement so long as all of the heirs and beneficiaries agree to small estate administration and have signed a written waiver of their right to contest the estate. This may also include probate of personal property that is discovered from an estate that was informally probated prior to the enactment of this chapter.

(2) Petition for Small Estate. For qualifying estates, an heir or the surviving spouse shall file an affidavit in Tribal Court which provides the following information:

(A) A death certificate, record or some evidence to establish deceased's status;

(B) the estimated value of the estate and the basis of that estimate;

(D) a family tree obtained from the Tribal Clerk;

(E) a written Will, if any;

(F) a list of known debts to be paid from the estate; and

(G) waiver from each heir and beneficiary consenting to the small estate administration.

(3) Contents of Affidavit. The affidavit shall include a request that the estate be settled informally without having to admit the estate to probate along with the written consent of all heirs to the procedure. The affidavit may set forth the proposed estate distribution.

(4) Requesting Party. If there is no surviving spouse, any of the deceased's next of kin or, if there is no next of kin, any suitable person whom the Tribal Court deems to have a sufficient interest may make the application.

(5) No Administrator. It shall not be necessary to appoint an Administrator if the value of the deceased's property appears to be less than $20,000.00 in value, there is no real property, no heir or beneficiary objects, and no one requests that one be appointed.

(6) Court Duty. Upon finding an estate qualifies for a small estate administration, the Tribal Court shall issue such orders and other documents as may be required for a small estate. It shall proceed as a small estate as long as no heir or beneficiary objects to it.

(d) Limited Administration. If a person dies and his/her heirs and/or beneficiaries need certain limited relief that cannot await full probate of the estate the Tribal Court may allow heirs, beneficiaries, creditors, the Tribe, or other interested party to obtain a special appointment with notice to heirs to address that limited purpose. Tribal Court shall develop a petition for such purpose, determine each case for a limited appointment in its discretion and shall set limits in its order of appointment. The order of appointment shall be recorded in the Tribal Clerk's office in the same manner as outlined in Section 12.02.140(b). If there is a subsequent estate that is probated, the limited administration and whatever action was taken shall be included in the decedent's inventory of assets. The Tribal Court's decision regarding a limited appointment is not considered a final decision for purposes of an appeal.

(e) Renouncing a Share of an Estate.

(1) Affidavit. A person who is an heir or a beneficiary by law or by Will may renounce in whole or in part the right to any estate property or interest. In order to renounce an interest or share of an estate, the person must file an affidavit with the Tribal Court not later than three (3) months after the deceased's death or the time at which it is determined that the person is entitled to take property.

(2) Court Action. The affidavit shall describe the property or interest being renounced and the extent of the renunciation. It shall be signed under oath by the person renouncing the interest. If the Court accepts the affidavit then, when applying the rules of inheritance, the Court shall treat the person renouncing the interest or share of the estate as having predeceased the deceased and the interest or share shall pass according to intestacy rules.

(f) Effect of Homicide on Beneficiaries.

(1) Heir. A surviving spouse, heir or beneficiary who is found to have criminally and intentionally killed the deceased is not entitled to any benefits passing under this chapter and the estate of the deceased shall pass as if the killer had predeceased the deceased.

(2) Right of Survivorship. Any person with a right of survivorship in personal or real property who criminally and intentionally kills a joint owner, joint tenant, or any other form of co-ownership has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship rights.

(3) Beneficiaries. A named beneficiary of a bond, life insurance policy or other contractual arrangement who criminally and intentionally kills the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the deceased.

(4) Other. Any other acquisition of property or interest from an estate by the killer shall be treated in accordance with the principles of this section.

(5) Judgment. A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Tribal Court may determine by a preponderance of the evidence whether the killing was criminal and intentional for purposes of this section.

(g) Simultaneous Death.

In some cases, title to property or the transfer of property depends upon an individual surviving the death of another person. An individual shall be deemed to have survived the other person if it is established by clear and convincing evidence that the individual survived the other person by 120 hours. If it cannot be established by clear and convincing evidence that the individual survived the deceased by 120 hours, then that individual is deemed to have been predeceased.