Drafting Wills for Clients with Indian Trust Lands, 0616 COBJ, Vol. 45 No. 6 Pg. 49

AuthorLucy Marsh, Alan Blakley Paul Padilla

45 Colo.Law. 49

Drafting Wills for Clients with Indian Trust Lands

Vol. 45 No. 6 [Page 49]

The Colorado Lawyer

June, 2016

Lucy Marsh, Alan Blakley Paul Padilla

Trust & Estate Law

Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.

Coordinating Editors

David W. Kirch, Aurora, of David W. Kirch, P.C.- (303) 671-7726, dkirch@ dwkpc.net; Constance D. Smith, Denver, of Fairfield and Woods P.C.-(303) 894-4474, csmith@fwlaw.com

About the Authors

Lucy Marsh teaches trusts and estates, property, and civil procedure at the University of Denver Sturm College of Law and is the director of the Tribal Wills Project. She is also director of the Wills Lab, which provides wills and related documents for low-income people in the Denver area-lmarsh@law.du.edu. Alan Blakley teaches international intellectual property and international dispute resolution at the University of Denver Sturm College of Law and owns Polaris Law Group. He was a supervising attorney on two previous tribal wills trips and is leading the trip to the Crow Reservation in Montana in May 2016-ab@lawpolaris.com. Paul Padilla is the managing partner of Padilla Law, P.C., in Durango and offers legal counsel in business transactions, criminal defense, civil litigation, mediation, and wills and trusts. He has been a supervising attorney for the Four Corners Tribal Wills Project annually since 2013-paul@padillalawpractice.com.

People who own Indian trust land are increasingly seeking estate planning services because of a recent federal statute, the American Indian Probate Reform Act, which provides that without a will virtually all of such trust land will descend entirely to the one oldest descendant. This article explains how to draft a will that complies with the complex provisions of this Act.

The majority of tribal members living in Colorado reside in the major metropolitan areas, not on Indian1 Reservations. Because of a recent federal statute, the American Indian Probate Reform Act (AIPRA or Act),2 it has become increasingly important for tribal members to have wills, and many are obtaining them.3 During the last three years, the University of Denver Sturm College of Law's Tribal Wills Project has provided more than 500 wills for Indians who have attended the weeklong clinics held on various reservations in Colorado, New Mexico, and Utah. The authors participated as supervising attorneys4 for several of those clinics and offer some pointers for other attorneys who may wish to provide similar services for clients living in the metropolitan areas.

Once practitioners are familiar with the somewhat complex provisions of AIPRA, helping clients prepare AIPRA-compliant wills can be a satisfying way to expand a practice or provide pro bono work for those in need. Fortunately, the requirements of AIPRA are the same nationwide, so it is not necessary to learn the rules for a multitude of different tribes to comply with AIPRA. The part of AIPRA that affects estate planning went into effect in 2008.5

Ascertaining Whether the Client Owns Trust Assets

The first step in successfully complying with AIPRA is to understand that AIPRA covers only "trust assets," which include property held in trust by the U.S. government for the benefit of individual Indians. Other property, both real and personal, that is not held in trust may be devised as the client requests, as with any other non-AIPRA property. However, for trust assets including both land and money, AIPRA controls. Even when the owner of trust land writes a will, most trust land may be devised only to an "eligible heir,"6 as defined by AIPRA.

Because hundreds of Indians may have an interest in any parcel of trust land, clients may not know exactly what their interests are in particular parcels. The Bureau of Indian Affairs, Office of Trust Services, Division of Land Titles and Records (DLTR) oversees the maintenance of title documents and the determination of legal title for federal Indian trusts or restricted lands and certifies the status of title to such lands.7 The records maintained by DLTR include deeds and probate orders.

The only sure way to ascertain whether a client owns any trust assets subject to AIPRA-and to acquire a full description of the client's ownership in each parcel-is to get a copy of the client's current Individual Trust Inventory (ITI). U.S. Bureau of Indian Affairs fiduciary trust officers (FTOs) have computer access to every ITI involving trust land anywhere in the United States. The FTO contact for Colorado is John Roach.8 FTOs are allowed to release an ITI only to someone who owns an interest in trust land. Attorneys should contact the FTO at least two weeks before a client appointment to arrange to have the ITI faxed directly to the attorney or, if preferred by the client, to the client.

Fractionation

Usually, a client owns very small fractional interests in a number of parcels of land, typically from one to 30 or more parcels. These fractional interests are the result of trust lands descending by intestacy to increasing numbers of descendants over several generations, which resulted in "fractionation." A good description of the fractionation problem is found in the U.S. Supreme Court case Hodel v. Irving:

Tract 1305, [has been] dubbed "one of the most fractionated parcels of land in the world." Tract 1305 is 40 acres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of...

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