Bureau of Indian Affairs (BIA)

before the probate case is submitted to OHA¹

within 30 days of BIA assembling the required documents²

within 30 days of the decision mailing date³

within 30 days of a rehearing decision³

Trust land and restricted fee land pass to eligible heirs through the BIA and OHA probate process. With a valid will they pass under the will; without one, under AIPRA intestate succession where no tribal probate code applies.⁶

An interest of less than 5 percent of a parcel that passes without a will goes to a single heir: the oldest eligible surviving child, then grandchild, then great-grandchild, then the tribe. A spouse living on the parcel at death first takes a life estate in it.⁶

Eligible heirs are the decedent's children, grandchildren, great-grandchildren, full siblings, half siblings by blood and parents who are Indian, are lineal descendants within two degrees of consanguinity of an Indian, or already own a trust or restricted interest in the same parcel.⁷

A relative who is not an eligible heir can still receive trust land by will but cannot take it by intestate succession.⁷

An IIM estate account is established when BIA receives notice of the account holder's death and stays open until the funds are distributed under the probate order, so the balance is not available to the family in the meantime.^{8, 5}

Heirs may renounce an interest, enter a consolidation or settlement agreement, or in some cases purchase an interest at probate.⁹

There is no deadline for notifying BIA of a death, but the regulation directs families to contact BIA as soon as possible.^{10, 11}

Anyone may report the death. The agency or regional office nearest where the decedent was enrolled, any agency or regional office, and the Trust Beneficiary Call Center are equivalent routes, and the office contacted notifies the office handling the case.^{12, 11, 13}

BIA verifies the decedent's identity, tribal enrollment and trust asset ownership, opens the probate case and assembles the probate package.¹³

When BIA refers the case to OHA, it also sends the tribes with jurisdiction a list of the decedent's fractional interests under 5 percent.²

OHA assigns the case to an Indian Probate Judge, an Administrative Law Judge or, in a summary probate proceeding, an Attorney Decision Maker, who conducts the proceeding and issues a written decision or order.¹²

The status of a probate can be checked through any BIA agency or regional office, a fiduciary trust officer, OHA or the Trust Beneficiary Call Center.¹²

The single heir rule needs no action from the family; OHA applies it when issuing the probate decision. The single heir may renounce in writing in favor of one other eligible heir, one co-owner of the parcel or the tribe.⁶

An interested party may request de novo review of an Attorney Decision Maker's decision or a rehearing of a judge's decision. Nothing is paid, retitled or distributed while a timely request or appeal is pending.³

Without a will, when eligible children, great-grandchildren, parents or siblings survive, the surviving spouse receives one-third of the trust personalty and a life estate without regard to waste in the trust or restricted land. With no such heirs, the spouse receives all the trust personalty and the life estate.⁶

The remainder passes to children (grandchildren only by right of representation through a deceased child), then great-grandchildren, then parents, then siblings, then the tribe with jurisdiction.⁶

Trust land, restricted fee land and IIM accounts are held in trust by the United States and governed by federal law: the American Indian Probate Reform Act of 2004 and 25 CFR Part 15. State courts have no jurisdiction over these trust assets.¹³

Fee-simple land, personal property, bank accounts and other non-trust assets pass through state court probate, or state non-probate transfers such as beneficiary designations and transfer-on-death deeds. The two processes proceed in parallel.¹³

Without a will, trust land descends under a tribal probate code approved under 25 U.S.C. 2205 where the tribe has one, and a tribe may adopt its own single-heir rule of intestate descent.⁶

The Bureau of Trust Funds Administration assumed the Office of the Special Trustee's fiduciary functions in a reorganization effective October 1, 2020, and runs the same Trust Beneficiary Call Center.⁴

Open the probate case; the agency nearest where the decedent was enrolled handles it^{15, 16}

The Interior Department's administrative trial court for Indian probate: holds the hearing and issues the decision¹⁷

Updates the land title records for trust and restricted land after the probate decision¹⁸

Distributes Individual Indian Money account funds once the OHA decision is final⁴