12.02.190 Initiating Process for Probate or Court Validation of a Will

(a) Petition for Probate. The custodian of the Will or any other person in possession of the Will, including a person named as Executor, may petition the Tribal Court for the Will to be probated under tribal law. In a probate proceeding, Tribal Court shall determine the heirs and beneficiaries; determine the validity of a Will; and determine whether there are valid claims against the estate. Probate shall result in the issuance of an order distributing the estate's assets and resolving claims against the estate.

(b) Petition Requirements. The petition shall meet the following requirements:

(1) Contents. The petition will be in writing, be signed by the petitioner, and include a death certificate or some other proof of death as set forth in Section 12.02.090 and the original Will.

(2) Proof of Court Authority. The petition shall provide evidence to support a finding that the deceased was (A) either a Tribal Member or a person eligible for enrollment as a Tribal Member and resided or owned real or personal property located within the Reservation or (B) a non-member spouse of a Tribal Member who owned personal property located within the Reservation. If the deceased is a non-member spouse, the evidence must show that the spouse resided on the Reservation or otherwise consented to the Tribal Court's jurisdiction.

(3) Identification of Heirs. The petition must state the names of the heirs of the deceased, if known, and include a Family Tree as certified by the Tribal Clerk.

(4) Identification of Beneficiaries. The petition must state the name or names of any person specified in the Will as Executor or beneficiary and the address of such persons, if known.

(5) Consent Forms. The petition may include written consent from each beneficiary to the appointment of the named Executor, if any, and the validity of the Will. If a beneficiary fails to consent to the appointment of the named Executor and the validity of the Will then notice of the filing of the petition along with a copy of the Will must be served upon that beneficiary.

(1) Self-Proving. If a Will is self-proving as provided for in Section 12.02.160(e), the person filing the petition need not file any separate evidence from the witnesses to the Will.

(2) Witness Statements. If the Will is not self-proving, the person filing the petition must include a notarized statement of at least one of the witnesses to the signing of the Will. In the statement, the witness must identify the Will as the document the deceased signed and declared to be his or her last Will. The witness and petitioner will also include a statement as to the deceased's capacity to sign a valid Will and if relevant, the circumstances surrounding the making of the Will.

(3) Other Proof. Every reasonable effort shall be made to obtain the testimony of the witnesses to the Will. If their testimony is not reasonably available, the petitioner must say so in the petition. The Tribal Court may allow proof of the Will by testimony or other evidence that the signature of the person making the Will is genuine.