43 CFR 30.101 – What definitions do I need to know?
Act means the Indian Land Consolidation Act and its amendments, including the American Indian Probate Reform Act of 2004 (AIPRA), Public Law 108-374, as codified at 25 U.S.C. § 2201 et seq.
Terms Used In 43 CFR 30.101
- Appraisal: A determination of property value.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Interrogatories: Written questions asked by one party of an opposing party, who must answer them in writing under oath; a discovery device in a lawsuit.
- Intestate: Dying without leaving a will.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Personal property: All property that is not real property.
- Probate: Proving a will
- Public law: A public bill or joint resolution that has passed both chambers and been enacted into law. Public laws have general applicability nationwide.
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- restricted property: as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation. See 43 CFR 30.101
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Trustee: A person or institution holding and administering property in trust.
Administrative law judge (ALJ) means an administrative law judge with OHA appointed under the Administrative Procedure Act, 5 U.S.C. § 3105.
Affidavit means a written declaration of facts by a person that is signed by that person, swearing or affirming under penalty of perjury that the facts declared are true and correct to the best of that person’s knowledge and belief.
Agency means:
(1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and
(2) Any office of a tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. § 450f or 458cc.
Attorney decision maker (ADM) means an attorney with OHA who conducts summary probate proceedings.
BIA means the Bureau of Indian Affairs within the Department.
Board means the Interior Board of Indian Appeals within OHA.
Chief ALJ means the Chief Administrative Law Judge, Probate Hearings Division, OHA.
Child means a natural or adopted child.
Codicil means a supplement or addition to a will, executed with the same formalities as a will. It may explain, modify, add to, or revoke provisions in an existing will.
Consolidation agreement means a written agreement under the provisions of 25 U.S.C. § 2206(e) or 2206(j)(9), entered during the probate process, approved by the judge, and implemented by the probate order, by which a decedent‘s heirs and devisees consolidate interests in trust or restricted land.
Co-owner means any person who owns an undivided trust or restricted interest in the same parcel in which the decedent owns an interest.
Covered permanent improvement means a permanent improvement (including an interest in such an improvement) that is:
(1) Owned by the decedent at the time of death; and
(2) Attached to a parcel of trust or restricted land that is also, in whole or in part, owned by the decedent at the time of death.
Creditor means any individual or entity that has a claim for payment from a decedent’s estate.
Day means a calendar day.
Decedent means a person who is deceased.
Decision means a written document issued by a judge in a formal probate proceeding or by a judge or ADM in a summary probate proceeding making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty.
Department means the Department of the Interior.
Deposition means a proceeding in which a party takes testimony from a witness during discovery.
Devise means a gift of property by will. Also, to give property by will.
Devisee means a person or entity that receives property under a will.
Discovery means a process through which a party to a probate proceeding obtains information from another party. Examples of discovery include interrogatories, depositions, requests for admission, and requests for production of documents.
Distribution order means the OHA order distributing additional property that has been added to an estate under § 30.251.
Eligible heir means, for the purposes of the Act, any of a decedent’s children, grandchildren, great grandchildren, full siblings, half siblings by blood, and parents who are:
(1) Indian;
(2) Lineal descendents within two degrees of consanguinity of an Indian; or
(3) Owners of a trust or restricted interest in a parcel of land for purposes of inheriting—by descent, renunciation, or consolidation agreement—another trust or restricted interest in such a parcel from the decedent.
Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.
Formal probate proceeding means a proceeding, conducted by a judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.
Heir means any individual or entity eligible to receive property from a decedent in an intestate proceeding.
Home agency means the agency that serves the Tribe in which the decedent is a member or where the decedent’s IIM account originated.
Individual Indian Money (IIM) account means an interest bearing account for trust funds held by the Secretary that belong to a person who has an interest in trust assets. These accounts are under the control and management of the Secretary.
Indian means, for the purposes of the Act:
(1) Any person who is a member of a federally recognized Indian tribe, is eligible to become a member of any federally recognized Indian tribe, or is an owner (as of October 27, 2004) of a trust or restricted interest in land;
(2) Any person meeting the definition of Indian under 25 U.S.C. § 479; or
(3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. § 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.
Indian probate judge (IPJ) means an attorney with OHA, to whom the Secretary has delegated the authority to hear and decide Indian probate cases, pursuant to 25 U.S.C. §§ 372–2.
Interested party means:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a claim against a decedent’s estate;
(4) Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or
(5) Any co-owner exercising a purchase option.
Interrogatories means written questions submitted to another party for responses as part of discovery.
Intestate means that the decedent died without a valid will as determined in the probate proceeding.
Joint tenancy means ownership by two or more persons of the same property, where the individuals, who are called joint tenants, share equal, undivided ownership of the property and have a right of survivorship such that upon the death of a joint tenant, the property descends to the other joint tenants by operation of law.
Judge means an ALJ or IPJ.
Lineal descendant means a blood relative of a person in that person’s direct line of descent.
Lockbox means a centralized system within OST for receiving and depositing trust fund remittances collected by BIA.
LTRO means the Land Titles and Records Office within BIA.
Master means a person who has been specially appointed by a judge to assist with the probate proceedings.
Minor means an individual who has not reached the age of majority as defined by the applicable law.
OHA means the Office of Hearings and Appeals within the Department.
Order means any written direction or determination, other than a decision, issued by a judge in a probate case, including a distribution order, an order on rehearing, an order on reopening, or a reconsideration order.
OST means the Office of the Special Trustee for American Indians within the Department.
Per stirpes means by right of representation, dividing an estate into equal shares based on the number of decedent’s surviving children and predeceased children who left issue who survive the decedent. The share of a predeceased child of the decedent is divided equally among the predeceased child’s surviving children.
Petition to Complete Purchase at Probate means a petition BIA files with an appraisal or valuation to request that OHA complete the purchase at probate process.
Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent’s estate is applied in order to:
(1) Determine the heirs;
(2) Determine the validity of wills and determine devisees;
(3) Determine whether claims against the estate will be paid from trust personalty; and
(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.
Purchase option at probate means the process by which eligible purchasers can purchase a decedent’s interest during the probate proceeding.
Restricted property means real property whose title is held by an Indian but which cannot be alienated or encumbered without the consent of the Secretary. For the purposes of probate proceedings, restricted property is treated as if it were trust property. Except as the law may provide otherwise, the term “restricted property” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.
Secretary means the Secretary of the Interior or an authorized representative.
Summary probate proceeding means the consideration of a probate file without a hearing. A summary probate proceeding may be conducted if the estate involves only an IIM account that did not exceed $300 in value on the date of the death of the decedent
Superintendent means a BIA Superintendent or other BIA official, including a field representative or one holding equivalent authority.
Tenants in common means two or more people who share ownership rights in a property, but whose ownership rights are divisible from each other and, when a tenant in common dies, the property descends to that tenant’s heirs or devisees rather than to the other tenant or tenants.
Testate means that the decedent executed a valid will as determined in the probate proceeding.
Testator means a person who has executed a valid will as determined in the probate proceeding.
Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.
Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.
We or us means the Secretary or an authorized representative as defined in this section.
Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent’s trust or restricted property.
You or I means an interested party, as defined herein, with an interest in the decedent’s estate unless a specific section states otherwise.