Native American Estate Planning

Native American estate planning—particularly for estates that include trust and restricted lands—can be complex. Probate of a Native American estate generally occurs in two courts: through the BIA for trust and restricted lands and IIM account funds and through tribal or district court for everything else. As we have helped clients with these probate proceedings in recent months, one question we often encounter is, “Could we have done anything to make this process easier?”

The answer is “yes!”

Our Native American clients have unique needs. The standard will that works for most of our clients does not address the needs of the Native American community, particularly as it relates to trust and restricted lands. 

By carefully crafting a will which complies with the American Indian Probate Reform Act of 2004 (AIPRA), we help our Native American clients take the proper steps to ensure their land and assets go to whom they want while making sure that all federal requirements are met.

AIPRA very strictly dictates who receives what if someone passes away without a will. While there are still specific requirements to be met regarding who can inherit, a will provides far more freedom to the Native American community to specify and care for their family in ways that the government may not do so. Further, preparing a will can help avoid the possibility of a forced sale of land.

Additionally, there are other methods by which a Native American can protect and control who receives their assets. For interests in trust and restricted land, a life estate deed can be prepared to convey those interests to a specific individual while reserving a life estate for the current owner. Through life estate deeds, trust and restricted land may also be converted to fee land if the Grantee is a non-Indian.

Further, at the Boppre Law Firm, we offer Native American Legacy Planning (NALP). A NALP can be revocable or irrevocable. You can learn more about these different types of trusts in one of our previous blog articles here. This is different from the federal government holding land and minerals in trust (trust and restricted land). With a NALP, an individual has complete control over the assets held in trust. There are several benefits to a NALP including:

• leave a legacy for one’s descendants

• protect and preserve assets

• control who gets what, when, and under what conditions

Funding is the most important part of any trust, including a NALP. Cash (such as funds from an IIM account) and off-reservation land and minerals or fee land can all be placed inside a NALP. However, interests in trust and restricted land cannot be placed into a NALP and would be better handled with a life estate deed as discussed above.

While estate planning and probate is often confusing and complex, we are here to make it as straightforward as possible and help our clients protect their families and their assets. Give us a call today at 701-852-5224 to discuss how a NALP can help you leave a legacy for your descendants!