Fact Sheet 5: Who is eligible to inherit your trust lands and retain trust status?
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As of June 20, 2006, if you pass away without a written will, the American Indian Probate Reform Act of 2004 (AIPRA) determines who is eligible to inherit your trust property and retain its trust status.*
Trust or restricted property
AIPRA affects only property that is held in trust or restricted status in the United States.* Interests in allotted land and Individual Indian Money (IIM) accounts are examples of trust or restricted status property (See Fact Sheet #13).
AIPRA does not affect any property you own that is not in trust or restricted status. Examples of non-trust or restricted status properties include:
- A checking or savings account in your name at a local financial institution,
- Vehicles with your name on the title, or
- Land not held in trust such as fee land (See Fact Sheet #3).
If you pass away without a written will, your non-trust property would be distributed to your heirs under state law or tribal law (depending on location), not under AIPRA (See Fact Sheet #1).
Definition of eligible heirs under AIPRA
Under AIPRA, your trust land can retain its trust status if it passes to eligible heirs. AIPRA defines eligible heirs as your:
- Brothers and sisters
- Half brothers and sisters by blood
Any of the above are eligible heirs, as long as they are Indian (defined this fact sheet below), or lineal descendants within 2 degrees of an Indian, or trust owners of the same parcel for purposes of inheriting by descent.
Under AIPRA, eligible heirs do not have to be enrolled members of the tribe. Aunts, uncles, and cousins are not considered eligible heirs under AIPRA because they are not within two degrees of consanguinity. Consanguinity is a legal term that describes a blood relationship or biological kinship among relatives.
Definition of Indian under AIPRA
Eligible heirs must also meet the AIPRA legal definition of Indian if they are to inherit your interests in trust or restricted status.
Under AIPRA a person who meets any one of the parts of the definitions of Indian below can inherit land and IIM accounts in trust or restricted status on June 20, 2006 and thereafter. * Under AIPRA, an Indian:
- Is a member of a federally recognized Indian tribe.
- Is eligible to become a member of a federally recognized Indian tribe.
- Was a trust owner of an undivided interest in trust or restricted land on October 27, 2004.
- Meets the definition of Indian under any one of the following parts of the Indian Reorganization Act (IRA) of 1934:
- Is enrolled in an IRA tribe.
- Is an aggregate of 1/2 Indian blood (from any tribe).
- Is a descendent of an IRA tribal member who was living on a reservation in 1934.
- Is a person of any degree of Indian ancestry who owns trust or restricted land in California. (A California Indian must meet the AIPRA definition of Indian to inherit land on reservations outside California).
Written wills and trust status land
Your lineal descendants and any trust co-owners in an allotment can inherit land in trust if it is left to them in your written will whether or not they meet the definition of Indian. In other words, you can leave your undivided interest in trust land to your children, grandchildren or great-grandchildren by naming them in a written will. They will inherit the land in trust regardless of whether they are enrolled tribal members.
A non-Indian cannot inherit any of your undivided interests in allotments in trust status. Even if you write a will naming a non-Indian as a beneficiary, he or she will not be permitted to inherit the land in trust. You can, however, write a will and leave a life estate in trust land to a non-Indian with the remainder to someone who meets the AIPRA definition of Indian.
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.
Marsha A. Goetting
Extension Family Economics Specialist
Department of Agricultural Economics and Economics
Montana State University
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.
* Except Alaska, the Five Civilized Tribes, and Osage.
Montana State University Extension is an ADA/EO/AA/Veteran’s Preference Employer and Provider of Educational Outreach.