[Title 25 CFR C]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter C - PROBATE]
[From the U.S. Government Printing Office]


25INDIANS12004-04-012004-04-01falsePROBATECSUBCHAPTER CINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
                          SUBCHAPTER C_PROBATE


PART 15_PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 
CIVILIZED TRIBES--Table of Contents




                         Subpart A_Introduction

Sec.
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Will the Secretary probate all the property in Indian estates?
15.4 How does the probate process work?

                 Subpart B_Starting the Probate Process

15.101 How do I begin the BIA probate process?
15.102 May I notify the BIA of a death if I am not related to the 
          decedent?
15.103 When should the BIA be notified of a death?
15.104 What other documents does the BIA need to process a probate 
          package?
15.105 Will the BIA wait to begin the probate process until it is 
          notified of the decedent's death?
15.106 Can I get emergency assistance for funeral services from the 
          decedent's IIM account?
15.107 Who prepares an Indian probate package?
15.108 What agency prepares the probate package if the decedent was not 
          an enrolled member of a tribe or is a member of more than one 
          tribe?
15.109 Can a probable heir or beneficiary give up his/her interest in 
          trust or restricted lands or trust funds?

                 Subpart C_Preparing the Probate Package

15.201 What will the BIA do with the documents that I provide?
15.202 What must the complete probate package contain?
15.203 What happens after the BIA prepares the probate package?
15.204 After the probate package has been sent to a BIA deciding 
          official, may I still request a formal hearing with an ALJ?
15.205 When will the BIA refer a probate to the OHA?
15.206 Is there a summary process for distributing an estate with only 
          trust cash assets?

         Subpart D_Probate Processing, Claims and Distributions

15.301 What does the attorney decision maker do with the probate 
          package?
15.302 What law is used by the deciding official to determine the 
          distribution of the trust estate?
15.303 If the decedent owed me money, how do I file a claim against the 
          estate?
15.304 How does the BIA deciding official determine if a claim will be 
          allowed and paid?
15.305 What claims will be paid first?
15.306 Can the BIA deciding official reduce the amount of claims?
15.307 What if there is not enough money in the decedent's IIM account 
          to pay all claims?
15.308 Will the BIA use future income to pay claims?
15.309 Will the BIA deciding official authorize payment of interest or 
          penalties accruing after the date of death?
15.310 When will the BIA deciding official issue a decision on the 
          probate?
15.311 What is in the written decision/order of the BIA deciding 
          official?
15.312 What happens after the decision is made?

                            Subpart E_Appeals

15.401 May I appeal the decision of the BIA deciding official?
15.402 How do I file an appeal of the decision/order?
15.403 How long do I have to file an appeal?
15.404 What will happen to the estate if an appeal is filed?
15.405 How does the ALJ review a decision issued by a BIA deciding 
          official?

                    Subpart F_Information and Records

15.501 If I have a question about a probate that has been assigned to a 
          BIA deciding official, may I contact the deciding official 
          directly?
15.502 How can I find out the status of a probate?
15.503 Who owns the records associated with this part?
15.504 How must records associated with this part be preserved?

    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, 
sec. 1, 38 Stat. 588, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 
1021, 1022, 25 U.S.C. 372, 373, 374, 373a, 373b; Federal Records Act, as 
amended, 44 U.S.C. Sec. 3101, et seq. (1950).

    Cross reference: For special rules applying to proceedings in Indian 
Probate (Determination of Heirs and Approval of Wills, Except for 
Members of the Five Civilized Tribes and Osage Indians), including 
hearings and appeals within the jurisdiction of the Office of Hearings 
and Appeals, see Title 43, Code of

[[Page 65]]

Federal Regulations, Part 4, Subpart D; Funds of deceased Indians other 
than the Five Civilized Tribes, see Title 25 Code of Federal 
Regulations, Part 115.

    Source: 66 FR 7089, Jan. 22, 2001, unless otherwise noted.



                         Subpart A_Introduction



Sec. 15.1  What is the purpose of this part?

    This part contains the procedures that the Secretary follows to 
initiate the probate of the trust estate of a deceased individual Indian 
who owned trust or restricted property. This part tells you how to file 
the necessary documents to probate the trust estate. This part also 
describes how probates will be processed by the BIA, and how probates 
may be sent to the OHA for disposition.



Sec. 15.2  What terms do I need to know?

    ALJ means an administrative law judge or other employee of the 
Department of the Interior's Office of Hearings and Appeals (OHA) upon 
whom authority has been conferred by the Secretary to conduct hearings 
in accordance with 43 CFR Part 4 Subpart D.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    IIM account means Individual Indian Money Account.
    LTRO means the Land Titles and Records Office within the BIA.
    OHA means the Hearings Division, Office of Hearings and Appeals, 
Department of the Interior.
    OTFM means the Office of Trust Funds Management, within the Office 
of the Special Trustee for American Indians, Department of the Interior, 
or its authorized representative.
    Agency means the agency office or any other designated office in the 
BIA having jurisdiction over trust or restricted property and money. 
This term also means any office of a tribe which has contracted or 
compacted the BIA probate function under 25 U.S.C. Sec. 450f or 25 
U.S.C. Sec. 458cc.
    Attorney decision maker means an attorney with the BIA, who reviews 
a probate package, determines heirs, approves wills and beneficiaries of 
the will, determines creditors claims, and issues a written decision.
    Beneficiary means any individual who receives trust or restricted 
property or money in a decedent's will.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Deciding official means the official with the delegated authority to 
make a decision on a probate matter, and may include a BIA regional 
director, agency superintendent, field representative, or attorney 
decision maker (BIA deciding official); or an OHA ALJ or other OHA 
designated official (OHA deciding official).
    Decision/order means a written document issued by the deciding 
official determining heirs, approving wills and beneficiaries of the 
will, approving creditors claims, and ordering distribution of property 
and money.
    Domicile means the legal residence of the person.
    Estate means the trust cash assets, restricted or trust lands owned 
by the decedent at the time of his death.
    Form OHA-7 means a form issued by the OHA which lists data for 
heirship and family history, and provides information on any wills, 
trust and restricted property, adoptions, names and addresses of all 
interested parties.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian monies account 
by the OTFM or a tribe performing this function under a contract or 
compact.
    Interested parties means any probable or actual heir, any 
beneficiary under a will, any party asserting a claim against a deceased 
Indian's estate, and any tribe having a statutory option to purchase the 
trust or restricted property interest of a decedent.
    Intestate means the decedent died without a will.
    Minor means an individual that has not reached age of majority as 
defined by the applicable tribal or state law.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of the 
decedent's estate is applied to: (1) determine the heirs; (2) approve 
wills and beneficiaries; and (3) transfer

[[Page 66]]

any funds held in trust by the Secretary for a decedent to the heirs, 
beneficiaries, or other persons or entities entitled by law.
    Probate clerk means a BIA or tribal employee who is responsible for 
processing a probate package.
    Probate specialist means the BIA or tribal employee who is trained 
in Indian probate matters.
    Restricted land means land the title to which is held by an 
individual Indian or a tribe and which can only be alienated or 
encumbered by the owner with the approval of the Secretary because of 
limitations contained in the conveyance instrument pursuant to federal 
law.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Superintendent or Field Representative means an authorized 
representative of the Secretary of the Interior who is the officer in 
charge of a BIA agency or field office.
    Testate means the decedent executed a will before his death.
    Trust cash assets means the funds held in an IIM account.
    Trust land means the land, or an interest therein, for which the 
United States holds fee title in trust for the benefit of an individual 
Indian.
    Vendor or Creditor means any individual or company who submits a 
claim for payment from a decedent's estate.
    We/Us means either an official of the BIA or a tribe performing 
probate functions under a BIA contract or compact.
    Will means a written testamentary document, including any properly 
executed written changes, called codicils, which was signed by the 
decedent and was attested by two disinterested adult witnesses, that 
states who will receive the decedent's trust or restricted property.
    You/I means an interested party, as defined herein, with an interest 
in the decedent's estate unless a specific section says otherwise.



Sec. 15.3  Will the Secretary probate all the property in Indian estates?

    (a) No. We will probate only the trust or restricted property in the 
estate of an Indian decedent.
    (b) We will not probate:
    (1) Real or personal property in an estate of an Indian decedent 
that is not trust or restricted property;
    (2) Restricted property derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests.
    (c) We will probate the estate of a deceased member of the Five 
Civilized Tribes or Osage Nation who owns an interest in land derived 
from an individual Indian other than the Five Civilized Tribes or Osage 
Nation.



Sec. 15.4  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B for details);
    (b) We prepare a probate package which includes documents that you 
send us (see subpart C for details);
    (c) We refer the completed probate package to a deciding official in 
the BIA or the OHA (see subpart D for details);
    (d) The deciding official decides how to distribute the property 
and/or funds deposited in an IIM account (see subparts D and E for 
details).



                 Subpart B_Starting the Probate Process



Sec. 15.101  How do I begin the BIA probate process?

    As soon as possible you should contact the nearest BIA agency or 
regional office where the decedent was enrolled to inform us of the 
decedent's death. You must provide a certified copy of the death 
certificate, if one exists. If a death certificate does not exist, you 
may provide one or more of the following:
    (a) A copy of the obituary notice from a local newspaper; or
    (b) Any other document that we accept that verifies the death, such 
as a church record or a court record; and
    (c) An affidavit of death prepared by the tribe with whom the 
decedent was

[[Page 67]]

associated or someone who knows about the decedent's death that supports 
the information in paragraph (a) or (b) of this section.



Sec. 15.102  May I notify the BIA of a death if I am not related to 
the decedent?

    Yes. You do not need to be related to the decedent in order to 
notify us of the death. You can be a friend, neighbor, or any other 
interested party.



Sec. 15.103  When should the BIA be notified of a death?

    There is no deadline for notifying us of a death. However, you 
should notify us of a death as soon as possible after the person dies.



Sec. 15.104  What other documents does the BIA need to process a probate 
package?

    (a) You should provide us with the following documents and 
information before we can begin to process the probate package.
    (1) Social Security number of the decedent;
    (2) The birth certificate or other record of birth of the decedent;
    (3) All death records including those listed in Sec. 15.101;
    (4) A list of known creditors against the estate and their 
addresses;
    (5) Current names and addresses of potential heirs and 
beneficiaries;
    (6) Any statements renouncing an interest in the estate;
    (7) Documents from a court of competent jurisdiction, including but 
not limited to:
    (i) All marriage licenses of the decedent;
    (ii) All divorce decrees of the decedent;
    (iii) Adoption and guardianship records relevant to the decedent;
    (iv) Any sworn statements regarding the decedent's family, including 
any statements of paternity or maternity;
    (v) Any name changes; and
    (vi) Order requiring payment of child support;
    (8) All original or certified copies of wills and codicils, and any 
revocations; and
    (9) Any additional documents you provide or that we request.
    (b) You must inform us if any of the documents or information 
identified in this part are not available.



Sec. 15.105  Will the BIA wait to begin the probate process until it is 
notified of the decedent's death?

    No. We may find out about the death of a person without being 
notified by an interested party. If we do, and if the decedent meets the 
criteria in Sec. 15.3, we will initiate the process to collect the 
necessary documentation. You should not assume that we will find out 
about a death. To assure timely distribution of the estate, you should 
notify us as provided in Sec. 15.101.



Sec. 15.106  Can I get emergency assistance for funeral services from 
the decedent's IIM account?

    (a) If you are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account and you have 
an immediate need to pay for funeral arrangements prior to burial, you 
may make a request to the BIA for up to $1,000 from the decedent's IIM 
account if the decedent's IIM account has more than $2,500 in the 
account at the date of death.
    (b) You must apply for this assistance and submit to the BIA an 
original itemized estimate of the cost of the service to be rendered and 
the identification of the service provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services, taking into consideration the total amount in 
the account, the number of probable heirs or beneficiaries of whom we 
are aware, the amount of any claims against the account of which we are 
aware, and any other relevant factor.
    (d) We will make payments directly to the providers of the services.



Sec. 15.107  Who prepares an Indian probate package?

    The probate specialist or probate clerk at the agency or tribe where 
the decedent is an enrolled member will prepare the probate package in 
consultation with the probable heirs or beneficiaries who can be 
located.

[[Page 68]]



Sec. 15.108  What agency prepares the probate package if the decedent 
was not an enrolled member of a tribe or is a member of more than one tribe?

    (a) If the decedent was not an enrolled member of a tribe, but owns 
interests in trust or restricted property, the agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will prepare the probate package, unless otherwise provided by 
federal law.
    (b) If the decedent was is a member of more than one tribe, the 
agency that has jurisdiction over the tribe with the strongest 
association with the decedent will prepare the probate package, unless 
otherwise provided by federal law.



Sec. 15.109  Can a probable heir or beneficiary give up his/her interest 
in trust or restricted lands or trust funds?

    Unless otherwise provided by federal law or a tribal inheritance 
code approved by the Secretary, you must file a statement renouncing 
your interest with the BIA or the OHA before the deciding official 
issues an order.
    (a) If you are a non-Indian and 21 years or older, you may give up 
all or part of your interest by submitting a notarized statement in 
which you renounce your interest in the estate.
    (b) If you are an Indian and 21 years or older and you wish to give 
up all or part of your interest in the estate, we must refer your 
request to the OHA in accordance with 43 CFR 4.208.



                 Subpart C_Preparing the Probate Package



Sec. 15.201  What will the BIA do with the documents that I provide?

    Once we receive the documents that you provide us under Sec. 
15.105, the probate specialist or probate clerk will:
    (a) Use the documents to prepare a probate package; and
    (b) Consult with you and any other sources to obtain any additional 
information needed for a complete package.



Sec. 15.202  What must the complete probate package contain?

    The complete probate package must contain all of the following:
    (a) A certified copy of the death certificate, if one exists, or 
some other reliable evidence of death as required by Sec. 15.101;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by the BIA;
    (c) A certified inventory of trust or restricted real property;
    (d) A statement describing all income generating activity;
    (e) A copy of the decedent's IIM account ledger showing:
    (1) The balance of the account at the date of death; and
    (2) The balance of the account at the date of probate package 
submission;
    (f) All original or certified copies of wills, codicils and any 
revocations of wills or codicils;
    (g) Any statements renouncing interest that have been submitted to 
the agency;
    (h) Claims of creditors against the estate;
    (i) All documentation of payment of claims paid prior to probate 
proceeding;
    (j) All other documents required in Sec. 15.105;
    (k) Tribal options to purchase interests of a decedent;
    (l) Affidavit of the probate clerk or probate specialist that all 
efforts to locate the probable heirs and beneficiaries have been 
exhausted; and
    (m) Any other documentation that may be required at the time of 
probate proceedings.



Sec. 15.203  What happens after the BIA prepares the probate package?

    Within 30 days after all the documents required by Sec. 15.105 and 
Sec. 15.202 are received, a probate specialist will review the probate 
package and determine who will be the appropriate deciding official.
    (a) If the decedent's estate contains only trust cash assets of a 
value less than $5,000 not including any interest that may have accrued 
after the death of the decedent, the probate package may be processed in 
accordance with Sec. 15.206 and may be referred to a BIA

[[Page 69]]

deciding official subject to the provisions in Sec. 15.205.
    (b) All other probate cases will be referred to a BIA attorney 
decision maker or an OHA deciding official subject to the provisions in 
Sec. 15.205.
    (c) We will notify all interested parties of:
    (1) The right of the probable heirs or beneficiaries to request a 
formal hearing before an ALJ;
    (2) The identification of the probable legal heirs; or
    (3) The submission of an original or certified copy of a will or 
revocation and listed beneficiaries;
    (4) Any known claims against the estate; and (5) The address of the 
designated office where the probate package has been sent.
    (d) If the deciding official is at the BIA and you have not 
requested a formal hearing before an ALJ, the probate specialist will 
send the probate package to the BIA deciding official within 30 days 
after the date the probate specialists mailed the notice to you.
    (e) If the deciding official is at the OHA, then we will send the 
probate package to the OHA deciding official and notify the probable 
heirs that they may ask the OHA for an in-person hearing at a site 
convenient to most of the parties, a video conference or teleconference 
hearing (if available), or a decision based on documents in the probate 
package.
    (f) On the same day that the probate specialist has determined who 
will be the designated deciding official, we will notify you of this 
determination by certified mail, return receipt requested.



Sec. 15.204  After the probate package has been sent to a BIA deciding 
official, may I still request a formal hearing with an ALJ?

    Yes, you may request a formal hearing before an ALJ at any time up 
until the date the BIA deciding official renders a decision.



Sec. 15.205  When will the BIA refer a probate to the OHA?

    We will refer a probate to the OHA under Sec. 15.203(d) if the 
probate specialist determines that a referral is appropriate. In 
determining whether to refer a probate to the OHA, the probate 
specialist will consider all of the criteria listed below:
    (a) Problems with the will. The probate specialist will refer the 
probate package to the OHA if it appears that the will:
    (1) Is likely to be contested;
    (2) Is complex or ambiguous; or
    (3) Is of questionable validity.
    (b) Contested claims. The probate specialist will refer the probate 
package to the OHA if you:
    (1) Contest a creditor claim; or
    (2) Contest a claim made by a family member.
    (c) Other problems. The probate specialist will be refer the probate 
package to the OHA if it appears there are:
    (1) Questions about family relationships;
    (2) Conflict in prior probate orders;
    (3) Problems with the evidence;
    (4) Questions about adoption of an heir;
    (5) Questions involving paternity;
    (6) Presumptions of death;
    (7) Rights of minor heirs that might be jeopardized;
    (8) Disclaimers of interests by Indian probable heirs or 
beneficiaries;
    (9) Determinations of escheat under 43 CFR Sec. 4.205;
    (10) Challenges to the jurisdiction of any court that issued an 
order that has been used as a supporting document; or
    (11) Questions concerning the decedent's domicile.
    (d) Approval of settlement agreements. The probate specialist will 
refer the case to the OHA if there is a settlement agreement between 
heirs or beneficiaries as to the disposition of the estate.



Sec. 15.206  Is there a summary process for distributing an estate with 
only trust cash assets?

    Yes. Unless otherwise provided by federal law or a tribal 
inheritance code approved by the Secretary, a decedent's estate that 
contains only trust cash assets of a value less than $5,000 not 
including any interest that may have accrued after the death of the 
decedent, may be summarily processed by a BIA deciding official.
    (a) Within 30 days after notice under Sec. 15.203 has been sent, 
the probable heirs may request a formal hearing before an ALJ to 
determine the proper

[[Page 70]]

distribution of the trust cash assets. Upon notice of a request for a 
formal hearing, the probate specialist will forward the probate package 
to the appropriate ALJ within five days.
    (b) Within 60 days after notice under Sec. 15.203 has been sent and 
if the probable heirs have not requested a formal hearing with an ALJ, 
the BIA deciding official to whom the probate has been referred will 
assemble the probable heirs and hold an informal hearing to determine 
the distribution of the trust cash assets.
    (c) Within 30 days after the informal hearing, the BIA deciding 
official will prepare an order in accordance with Sec. 15.302 through 
Sec. 15.311.
    (d) Any interested party may appeal a summary distribution decision 
in accordance with subpart E of this part.



         Subpart D_Probate Processing, Claims and Distributions



Sec. 15.301  What does an attorney decision maker do with the probate package?

    (a) Upon receipt of the probate package, the attorney decision maker 
reviews the probate package and determines whether there are issues of 
fact or law of the case that indicate that the probate package should be 
referred to the OHA. If any issues of fact or law that require a hearing 
are apparent from the review of the case, the attorney decision maker 
will refer the probate package to the appropriate ALJ within five days.
    (b) Within 30 days after notice under Sec. 15.203 has been sent, 
the probable heirs may request a formal hearing before an ALJ to 
determine the distribution of the estate. Within five days of the 
receipt of notice of a request for a formal hearing, the attorney 
decision maker will forward the probate package to the appropriate ALJ.
    (c) Within 120 days after the notice under Sec. 15.203 has been 
sent and if the probable heirs have not requested a formal hearing with 
an ALJ, the attorney decision maker will assemble the probable heirs and 
hold an informal hearing to determine the distribution of the estate.
    (d) Within 60 days after the informal hearing, the attorney decision 
maker will issue an written order in accordance with Sec. 15.310.



Sec. 15.302  What law is used by the deciding official to determine the 
distribution of the trust estate?

    Unless otherwise provided by federal law or a tribal inheritance 
code approved by the Secretary, the law of the state where the decedent 
was domiciled will determine the distribution of the estate.



Sec. 15.303  If the decedent owed me money, how do I file a claim against 
the estate?

    (a) If you wish to make a claim against the estate of a decedent, 
you must submit to us an original and two copies of an itemized 
statement of the debt showing the amount of the original debt and the 
remaining balance on the date of the decedent's death.
    (b) The itemized statement must state whether you have filed a claim 
against the decedent's non-trust assets.
    (c) We must receive your claim within 60 days from the date the BIA 
receives the verification of the decedent's death in Sec. 15.101 to be 
included as part of the probate package.



Sec. 15.304  How does the BIA deciding official determine if a claim will 
be allowed and paid?

    (a) The BIA deciding official may direct the payment of some or all 
of the debts of the decedent after reviewing the probate package in 
accordance with the standards provided at 43 CFR 4.250 (c) through (g), 
and no claim prohibited by 43 CFR 4.250 will be paid.
    (b) No claim will be paid from trust or restricted assets where the 
BIA deciding official is aware that the decedent's non-trust estate may 
be available to pay the claim.



Sec. 15.305  What claims will be paid first?

    (a) The first claims to be paid, referred to as priority claims, are 
paid in order of priority. The priority claims are:
    (1) Funeral expenses (including the cemetery marker);
    (2) Medical expenses for the last illness;
    (3) Nursing home or other care facility expenses;
    (4) A claim of an Indian tribe;

[[Page 71]]

    (5) A claim reduced to judgment by a court of competent 
jurisdiction.
    (b) After payment of the priority claims, the BIA deciding official 
may authorize all remaining claims, referred to as general claims.



Sec. 15.306  Can the BIA deciding official reduce the amount of claims?

    The BIA deciding official has the discretion to decide that part or 
all of an otherwise valid claim is unreasonable, reduce the claim to a 
reasonable amount, or disallow the claim in its entirety.
    (a) If a claim is reduced, the BIA deciding official will order 
payment only of the reduced amount.
    (b) The BIA deciding official may reduce or disallow both priority 
claims and general claims.



Sec. 15.307  What if there is not enough money in the decedent's IIM 
account to pay all claims?

    (a) If there is not enough money in the IIM account to pay all 
claims, the BIA deciding official will order payment of the priority 
claims first in the order identified in Sec. 15.305.
    (b) If there is not enough in the IIM account to pay the priority 
claims, the BIA deciding official may order payment of the priority 
claims on a pro rata (reduced) basis.
    (c) If less than $1,000 remains in the IIM account after payment of 
priority claims is ordered, the general claims may be ordered paid on a 
pro rata basis or disallowed in their entirety.



Sec. 15.308  Will the BIA use future income to pay claims?

    No. The unpaid balance of any claims will not be enforceable against 
the estate after the estate is closed.



Sec. 15.309  Will the BIA deciding official authorize payment of interest 
or penalties accruing after the date of death?

    No. Interest or penalties charged against either priority or general 
claims after date of death will not be paid.



Sec. 15.310  When will the BIA deciding official issue a decision on the 
probate?

    Within 60 days after an informal hearing has been held, the BIA 
deciding official will issue a written decision/order in accordance with 
Sec. 15.311. Upon receipt of the decision/order, the BIA deciding 
official will send all interested parties a copy of the decision/order.



Sec. 15.311  What is in the written decision/order of the BIA deciding 
official?

    The BIA deciding official issues a written decision/order that:
    (1) In intestate cases: Lists the names, relationship to the 
decedent, and shares of the heirs; provides citations to the law of 
descent and distribution; or the fact that the decedent died leaving no 
legal heirs;
    (2) In testate cases: approves or disapproves a will; interprets 
provisions of the approved will; provides the names and relationship of 
the beneficiaries to the decedent; describes the property each 
beneficiary is to receive;
    (3) Allows or disallows claims against the estate; orders the amount 
of payment for all approved claims;
    (4) States whether the heirs or beneficiaries are Indian or non-
Indian;
    (5) Determines any rights of dower, curtesy or homestead which may 
constitute a burden upon the interest of the heirs;
    (6) Attaches a certified copy of the inventory of trust or 
restricted lands, if any; and
    (7) Advises all interested parties of their appeal rights in 
accordance with subpart E of this part.



Sec. 15.312  What happens after the decision is made?

    We will not pay claims, transfer title to land, or distribute trust 
cash assets for 75 days after the decision/order is mailed to the 
interested parties. After 75 days and if no appeal has been filed, the 
following actions will take place:
    (a) The LTRO will change its land title records for the trust and 
restricted property in accordance with the decision/order; and
    (b) The OTFM will pay claims and distribute the IIM account in 
accordance with the decision/order.

[[Page 72]]



                            Subpart E_Appeals



Sec. 15.401  May I appeal the decision of the BIA deciding official?

    You have a right to appeal the decision made by the BIA deciding 
official if you are an interested party and are affected by the probate 
decision.



Sec. 15.402  How do I file an appeal of the decision/order?

    (a) To file an appeal of the decision/order, you may send or deliver 
a signed, written statement to the BIA deciding official where the 
probate package was sent that contains:
    (1) The name of the decedent;
    (2) A description of your relationship to the decedent;
    (3) An explanation of why you are appealing; and
    (4) Any errors you believe the BIA deciding official made.
    (b) Within ten days from the receipt of the appeal, the BIA deciding 
official will notify all other interested parties of the appeal and 
forward the case to the appropriate ALJ.



Sec. 15.403  How long do I have to file an appeal?

    (a) You must send or deliver your written appeal within 60 days of 
the date that appears on the decision mailed to you. If you mail your 
appeal, it must be postmarked within 60 days of the date of the 
decision.
    (b) If the 60-day appeal period is missed, you still have a right to 
file a written statement with the BIA deciding official asking to have 
the decision changed for one or more of the following reasons:
    (1) You did not receive notice of the probate;
    (2) You have obtained new evidence or information after the decision 
was made; or
    (3) You have evidence that was known at the time of the probate 
proceeding but was not included in the probate package.
    (c) After we have received your request, we will forward it to the 
appropriate ALJ within ten days for action in accordance with 43 CFR 
Part 4, Subpart D.



Sec. 15.404  What will happen to the estate if an appeal is filed?

    The BIA deciding official will refer your appeal to the appropriate 
ALJ in the same manner provided under 43 CFR Sec. 4.210. Until the 
appeal has been resolved, the BIA will not distribute any of the 
decedent's property or modify the land title records and the OTFM will 
not pay claims or distribute any funds in the decedent's IIM account.



Sec. 15.405  How does the ALJ review a decision issued by a BIA deciding 
official?

    The ALJ will conduct a de novo review; that is, conduct a formal 
hearing on the merits of the case.



                    Subpart F_Information and Records



Sec. 15.501  If I have a question about a probate that has been assigned 
to a BIA deciding official, may I contact the deciding official directly?

    In order to avoid off-the-record communications with the BIA 
deciding official about your specific case that might be interpreted as 
an attempt to influence final decision on the probate case, you should 
direct your questions to the BIA deciding official's clerk or the 
probate specialist or probate clerk who prepared your probate package.



Sec. 15.502  How can I find out the status of a probate?

    You may request information about the status of an Indian probate 
from any BIA agency or regional office.



Sec. 15.503  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program pursuant to Public Law 93-638 as amended; 
and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.

[[Page 73]]

    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec. 15.504  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec. 15.503(a) must preserve the 
records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 
33. These records and related records management practices and 
safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 15.503(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, the tribe 
or tribal organization may be prevented from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



PART 16_ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES--Table of Contents



Sec.
16.1 Definitions.
16.2 Scope of regulations.
16.3 Legal representation in State courts.
16.4 Exchange of information within the Department.
16.5 Acceptance and acknowledgement of service of process.
16.6 Authority of attorneys in State court litigation.
16.7 Performance of Federal functions by successor State courts.
16.8 Summary distribution of small liquid estates.
16.9 Escheat of estates of decedents.

    Authority: 5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906, 
ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27, 1908, 
ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June 14, 1918, 
ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr. 12, 1926, 
ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of June 26, 1936, 
ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of Aug. 4, 1947, 
ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25 U.S.C. 355nt 
(1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25 U.S.C. 375c 
(1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11, 1955, ch. 786, 69 
Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug. 29, 1967, Pub. L. 90-
76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and Act of May 7, 1970, Pub. 
L. 91-240, 84 Stat. 203, 25 U.S.C. 375d (1970)).

    Source: 37 FR 7082, Apr. 8, 1972, unless otherwise noted.



Sec. 16.1  Definitions.

    (a) The term Secretary means the Secretary of the Interior and his 
authorized representatives.
    (b) The term Bureau means the Bureau of Indian Affairs, acting 
through the Commissioner of Indian Affairs and his authorized 
representatives, including field officials who are responsible for 
matters affecting properties in which a restricted interest is owned by 
an Indian of the Five Civilized Tribes.
    (c) The term Field Solicitor means the Regional Solicitor, Southwest 
Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma 
74101.
    (d) The term Indian of the Five Civilized Tribes means an individual 
who is either an enrolled member of the Cherokee, Chickasaw, Choctaw, 
Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled 
member thereof.
    (e) The term restricted interest means an interest owned in real or 
personal property subject to restraints upon alienation imposed either 
by Federal statute or by administrative action authorized by Federal 
statute. Although this term includes property subject to restraints 
which may be removed by administrative action, its use in this part 
refers primarily to property subject to restraints which State courts 
have jurisdiction to remove in proceedings such as those specified in 
Sec. 16.2.

[37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985]

[[Page 74]]



Sec. 16.2  Scope of regulations.

    The regulations in this part set forth procedures for discharging 
the responsibilities of the Secretary in connection with the performance 
by State courts, as authorized by Federal statutes, of certain functions 
which affect properties in which a restricted interest is owned by an 
Indian of the Five Civilized Tribes. These State court functions pertain 
to such proceedings as guardianship, heirship determination, will 
probate, estate administration, conveyance approval, partition of real 
property, confirmation of title to real property, and appeal from action 
removing or failing to remove restrictions against alienation. In 
addition, the regulations in this part set forth procedures for 
discharging certain other responsibilities of the Secretary not 
necessarily involving State court functions, such as escheat of estates 
of deceased Indians of the Five Civilized Tribes.



Sec. 16.3  Legal representation in State courts.

    The statutory duties of the Secretary to furnish legal advice to any 
Indian of the Five Civilized Tribes, and to represent such Indian in 
State courts, in matters affecting a restricted interest owned by such 
Indian, shall be performed by attorneys on the staff of the Solicitor, 
under the supervision of the Field Solicitor. Such advice and 
representation shall be undertaken to the extent that the Field 
Solicitor in his discretion shall consider necessary to discharge said 
duties, with due regard to the complexity of the legal action 
contemplated, the availability of staff attorneys for such purposes, the 
value and extent of the restricted interests involved, possible 
conflicts between Indians claiming to be owners of such interests, the 
preference of such owners concerning legal representation, the financial 
resources available to such owners, the extent to which such owners 
require similar legal services in connection with their unrestricted 
properties, and any other factor appropriate for consideration.



Sec. 16.4  Exchange of information within the Department.

    To the extent that information may be useful in discharging the 
duties covered by the regulations in this part, the Bureau shall furnish 
to the Field Solicitor, either on a current basis or at periodic 
intervals, processes and notices received concerning court cases and 
information, as current and complete as may reasonably be obtainable, 
concerning the estate and status of an Indian of the Five Civilized 
Tribes for whom legal assistance should be rendered pursuant to the 
regulations in this part. Similarly, to the extent that such information 
may be useful for Bureau action or records, the Field Solicitor shall 
advise the Bureau of court proceedings, information received, and action 
taken in furnishing legal services pursuant to the regulations in this 
part.



Sec. 16.5  Acceptance and acknowledgement of service of process.

    Service by the Field Solicitor or any other person of any process or 
notice, pursuant to any Federal statute which by its express terms is 
applicable to Indians of the Five Civilized Tribes, may be accepted and 
acknowledged by the Field Solicitor, or by any attorney authorized to 
perform the duties specified in Sec. 16.3, on behalf of the Secretary 
and the Bureau, notwithstanding any specific designation in such statute 
of the official to be served (such as the Secretary, superintendent for 
the Five Civilized Tribes, Probate Attorney, etc.).



Sec. 16.6  Authority of attorneys in State court litigation.

    Attorneys authorized to perform the duties specified in Sec. 16.3 
appearing in State court litigation in their official capacities are 
authorized to take such action as the Secretary could take if he were 
personally appearing in his official capacity as counsel therein, 
including but not limited to the filing or decision against filing of 
initial, responsive, or supplemental pleadings and appeals from adverse 
judgments, the exercise or decision against exercise of a preferential 
right to purchase property subject to sale, the removal or decision 
against removal of actions

[[Page 75]]

to Federal courts, and the waiver or decision against waiver of the 
failure to make timely service of process or notice.



Sec. 16.7  Performance of Federal functions by successor State courts.

    All authority to perform functions relating to Indians of the Five 
Civilized Tribes which by express provisions of Federal statute had been 
conferred upon probate or county courts of Oklahoma before such county 
courts were abolished on January 12, 1969, has since that date been 
vested in the successor district courts of that State, and all rights of 
litigants continue undiminished in the successor forum, including the 
right to appeal from adverse decisions rendered therein to the successor 
appellate court.

(Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20, 1968))



Sec. 16.8  Summary distribution of small liquid estates.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes contains no restricted land but consists of a 
restricted interest in funds not exceeding $500 on deposit to the credit 
of the decedent, the Field Solicitor shall, in the absence of any final 
decree determining the heirs or legatees of the decedent, prepare and 
furnish to the Bureau a finding and order of distribution, based on 
affidavit or other proof of death and heirship or bequest, setting forth 
the facts of death and heirship or bequest and the amount payable from 
the estate to each person determined to be an heir or legatee of the 
decedent. The Field Solicitor shall mail to each person considered a 
possible claimant to any portion of the estate, as an heir or legatee or 
otherwise, a copy of the order with a notice that the order shall become 
final 30 days after the date of mailing thereof unless within that 
period the officer by whom the order was signed shall have received a 
written request for reconsideration of the order. After final action on 
any order has been taken by the Field Solicitor, the Bureau shall 
distribute the funds in the estate of the decedent in accordance with 
such final action, unless a timely appeal therefrom has been filed in 
accordance with part 2 of this title.



Sec. 16.9  Escheat of estates of decedents.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes, who has been dead 5 or more years after having 
died intestate without heirs, consists of restricted interests in lands 
or rents or profits therefrom, the Field Solicitor shall, in the absence 
of any final decree determining that the decedent died without heirs or 
devisees, prepare and furnish to the Bureau a finding and order of 
escheat, based on affidavit or other proof of intestate death without 
heirs, setting forth the restricted interests in lands or rents or 
profits therefrom which have by escheat vested in the tribe which 
allotted the lands. The Field Solicitor shall mail to each person 
considered a possible claimant to any portion of the estate, as an heir 
or devisee or otherwise, a copy of the order with a notice that the 
order shall become final 30 days after the date of mailing thereof 
unless within that period the officer by whom the order was signed shall 
have received a written request for reconsideration of the order. After 
final action on any order has been taken by the Field Solicitor, the 
Bureau shall cause a certified copy thereof to be filed in the land 
records of each county within which are located any escheated lands 
described therein and shall cause the tribe to be credited with any 
funds in said estate which arose from rents or profits from such lands, 
unless a timely appeal therefrom has been filed in accordance with part 
2 of this title.



PART 17_ACTION ON WILLS OF OSAGE INDIANS--Table of Contents




Sec.
17.1 Definitions.
17.2 Attorneys.
17.3 Pleadings, notice and hearings.
17.4 Service on interested parties.
17.5 Minors represented at hearings.
17.6 Examination of witness.
17.7 Limiting number of witnesses.
17.8 Supplemental hearing.
17.9 Briefs.

[[Page 76]]

17.10 Record.
17.11 Inspection of wills and approval as to form during testator's 
          lifetime.
17.12 Approval.
17.13 Government employees as beneficiaries.
17.14 Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10530, Dec. 24, 1957, unless otherwise noted.



Sec. 17.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) Secretary means the Secretary of the Interior.
    (b) Commissioner means the Commissioner of Indian Affairs.
    (c) Superintendent means the superintendent of the Osage Indian 
Agency.
    (d) Special attorney means the special attorney for Osage Indians, 
or other legal officer designated by the Commissioner.



Sec. 17.2  Attorneys.

    Interested parties may appear in person or by attorneys at law. 
Attorneys must file written authority to appear for their clients in the 
proceedings.



Sec. 17.3  Pleadings, notice and hearings.

    (a) The petition for approval of the will of a deceased Osage Indian 
may be set down for hearing at a date not less than 30 days from the 
date the petition is filed. Hearings shall be conducted only after 
notice of the time and place of such hearings shall have been given by 
mail. The notice shall be mailed not less than 10 days preceding the 
date of the hearing and shall state that the special attorney will, at 
the time and place specified therein, take testimony to determine 
whether the will of the deceased Osage Indian shall be approved or 
disapproved. The notice shall list the presumptive heirs of the decedent 
and the beneficiaries under such will, and shall notify the attesting 
witnesses to be present and testify. It shall state that all persons 
interested in the estate of the decedent may be present at the hearing. 
The notice shall further state that the special attorney may, in his 
discretion, continue the hearing to another time or place to be 
announced at the original hearing.
    (b) Any interested party desiring to contest approval of the will 
may, not less than 5 days before the date set for hearing, file written 
objections in triplicate, showing that a copy thereof was served upon 
attorneys for the proponent and other attorneys of record in the case. 
Such contestant shall clearly state the interest he takes under the will 
and, if a presumptive heir, the interest he would take under the 
Oklahoma law. The contestant shall further state specifically the ground 
on which his contest is based.



Sec. 17.4  Service on interested parties.

    A copy of the notice of hearing shall be served by mail, at his last 
known place of residence, on each presumptive heir; each beneficiary 
under the will offered for consideration; and each attesting witness 
thereto. Such notice must be mailed not less than 10 days preceding the 
date set for the hearing.



Sec. 17.5  Minors represented at hearings.

    Minor heirs at law, who by the terms of the will are devised a 
lesser interest in the estate than they would take by descent, of whose 
interests are challenged, shall, with the approval of the special 
attorney, be represented at the hearing by guardians ad litem. Such 
minors 14 years of age or over may indicate in writing their choice of 
guardians ad litem. If no such choice has been indicated on the date of 
the hearing, the special attorney shall make the selection and 
appointment.



Sec. 17.6  Examination of witness.

    All testimony taken at the hearing shall be reduced to writing. Any 
interested party may cross-examine any witness. Attorneys and others 
will be required to adhere to the rules of evidence of the State of 
Oklahoma. If, in addition to oral testimony, affidavits or dispositions 
are introduced, they must be read, and any opposing claimant may require 
the presence of the affiant, if practicable, either at that or a 
subsequent hearing, and opportunity shall be given for cross-examination 
or for having counter interrogatories answered.

[[Page 77]]



Sec. 17.7  Limiting number of witnesses.

    When the evidence seems clear and conclusive, the special attorney 
may, in his discretion, limit the number of witnesses to be examined 
formally upon any matter.



Sec. 17.8  Supplemental hearing.

    When it appears that a supplemental hearing is necessary to secure 
material evidence, such a hearing may be conducted after notice has been 
given to those persons on whom notice of the original hearing was served 
and to such other persons as the testimony taken at the original hearing 
indicates may have a possible interest in the estate.



Sec. 17.9  Briefs.

    When there are two or more parties with conflicting interests, the 
party upon whom the burden of proof may fall may be allowed a reasonable 
time, not to exceed 30 days following the conclusion of the hearing, in 
which to file a brief or other statement of his contentions, showing 
service on opposing counsel or litigant. The latter shall then be 
allowed not to exceed 20 days in which to file an answer brief or 
statement, and his opponent shall have 10 days thereafter to file a 
reply brief or statement. Upon proper showing the special attorney may 
grant extensions of time. Each brief or statement shall be filed in 
duplicate.



Sec. 17.10  Record.

    After the hearing or hearings on the will have been terminated the 
special attorney shall make up the record and transmit it with his 
recommendation to the superintendent. The record shall contain:
    (a) Copy of notices mailed to the attesting witnesses and the 
interested parties.
    (b) Proof of mailing of notices.
    (c) The evidence received at the hearing or hearings.
    (d) The original of the will or wills considered at the hearings.
    (e) A copy of all the pleadings.

The record, except the original will, shall be a part of the permanent 
files of the Osage Agency.



Sec. 17.11  Inspection of wills and approval as to form during testator's 
lifetime.

    When a will has been executed and filed with the superintendent 
during the lifetime of the testator, the will shall be considered by the 
special attorney who may endorse on such will ``approved as to form.'' A 
will shall be held in absolute confidence and its contents shall not be 
divulged prior to the death of the testator.



Sec. 17.12  Approval.

    After hearings have been concluded in conformity with this part the 
superintendent shall approve or disapprove the wills of deceased Osage 
Indians.



Sec. 17.13  Government employees as beneficiaries.

    In considering the will of a deceased Osage Indian the 
superintendent may disapprove any will which names as a beneficiary 
thereunder a government employee who is not related to the testator by 
blood, or otherwise the natural object of the testator's bounty.



Sec. 17.14  Appeals.

    (a) Notwithstanding the provisions in part 2 of this chapter 
concerning appeals generally from administrative actions, any appeal 
from the action of the superintendent of approving or disapproving a 
will shall be taken to the Secretary. Upon the superintendent's final 
action of approval or disapproval of a will, he shall immediately notify 
by mail all attorneys appearing in the case, together with interested 
parties who are not represented by attorneys, of his decision and of 
their right to file an appeal.
    (b) Any party desiring to appeal from the action of the 
superintendent shall, within 15 days after the date of the mailing of 
notice of the decision file with the superintendent a notice in writing 
of his intention to appeal to the Secretary, and shall, within 30 days 
after the mailing date of such notice by the superintendent, perfect his 
appeal to the Secretary by service of the appeal upon the superintendent 
who will transmit the entire record to the Secretary. If no notice of 
intention to appeal is given within 15 days, the superintendent's 
decision will be final.

[[Page 78]]

    (c) Upon the filing of notice with the superintendent of intention 
to appeal or the perfecting of an appeal by service upon the 
superintendent, at the same time similar notice and service shall be 
effected by the party taking an appeal upon opposing counsel or 
litigants, and a statement included in the appeal that this has been 
done. A party taking an appeal may, within the same 30-day period 
allowed for perfecting an appeal, file a brief or other written 
statement of his contentions, showing also service of that brief upon 
opposing counsel or litigants. Opposing counsel or litigants shall have 
30 days from the date of the service of appellant's brief upon them in 
which to file an answer brief, copies of which also shall be served upon 
the appellant or opposing counsel and litigants. Except by special 
permission, no other briefs will be allowed on appeal.

[26 FR 10930, Nov. 22, 1961]

[[Page 79]]