3 Questions to Ask When Navigating Estate Planning for American Indians

3 Questions to Ask When Navigating Estate Planning for American Indians

By Solid Serenity Legal Solutions

Estate law can be confusing if you are not already familiar with the process and terminology. Estate planning for American Indians can be specifically difficult because of the many unique considerations.

How to set your estate up, how to distribute your property, and who to give your property to are all questions that take on different rules for American Indians.

However, there are some specific questions to ask to make sure your estate passes as you wish. Here are 3 questions to ask when navigating estate planning for American Indians.

(1) How Should You Set Up Your Estate?

Many of the common estate planning tools can also be useful for American Indians. The most common of these might be wills. With a will, you are able to designate which assets will go to which heir (with some exceptions discussed further below).

Trusts are another common estate tool that can be used in planning. Trusts allow you to pass down your assets outside of the probate process. However, there are stricter limitations as to who these assets can go to if they include restricted or tribal lands or the Settlor is a full-blood member of certain tribes.

Another option is to sell or gift your assets to others during your lifetime. Though this option allows you to avoid probate, you will lose control of your assets during your lifetime.

(2) How Should You Distribute Your Property?

American Indian property can have different rules and restrictions that require different planning tools than other kinds of property. Any land an American Indian owns that is not restricted can be held in a trust or designated in a will to any individual.

Restricted land has special rules. In 2004, Federal regulations were put in place that require restricted land that represents less than 5% of the original interest to pass only to the American Indian owner’s oldest eligible heir. An eligible heir is generally a child, grandchild, or great-grandchild.

This rule does not apply to restricted interests owned by members of the Five Tribes or the Osage.

Another option American Indians may use is transferring the property to an heir during their lifetime, while holding a life estate. However, gift deeds must be initiated and approved by the Department of the Interior and you cannot change the Deed once you have issued it. Such restrictions may make this option unattractive.

(3) Who Can You Give Your Property To?

Anyone can be an heir to unrestricted property owned by American Indians. However, restricted property must follow the Federal rules outlined above.

Because American Indian estate planning law is so unique, be sure to find an attorney who is familiar with the law to help you plan your estate. We can help.

If you are a low-income member of an American Indian tribe, you can receive services from Oklahoma Indian Legal Services.

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