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hello everybody my name is Joe hardgrave and i am the supervising attorney for the indian law practice group at Montana Legal Services Association I work out of our helena office and I'm presenting on the drafting of Indian wills today a little bit about me and my background and why I'm teaching this Montana Legal Services Association had an Indian wills project years ago and we had how I started my career back in 2008 I was an AmeriCorps legal fellow and we had what we called the Indian wills project we had this for several years we're all I did was driving around to all right all the reservations in the state and wrote wills and gave presentations on the American Indian probate Reform Act and it was a great job it was a great resource that we had at legal services however that position is no longer there and that went away a few years ago now i'm primarily serve as the public defender at Fort Belknap and takes civil cases and Belknap and rocky boys and other tribal courts and I'm essentially a full-time litigator but doing Indian wills is how I started my career they are important to me I have a passion for doing them and legal services has just recently expanded our services to draft more wills we don't have the same Indian Wells project we had before but we do have capacity to do will drafting now and so we are once again trying to draft as many wills as we can to get started so why why are we talking about Indian wills why are Indian wills important and it all started with the April the American Indian probate reform act which was enacted in 04 became effective in 2006 so it's still a relatively new law but as as you've learned April was designed to address this issue of fractionation which are these small trust allotments that that many native people own that have been they're just very small decimal like point zero zero zero one percent sometimes interest in in a trust allotment so this federal law April was passed to address this issue of these very small interests that are unwilling and difficult to do much with or to become profitable so much of a pra's design is to address this issue and many of the rules the rules that when you don't have a will for instance the single heir rule which a lot of people have heard if you have a smaller than five percent interest and you don't have a will that will go to your oldest child which is kind of a harsh provision people have heard of this rule but its purpose is to address fractionation as you can see if they want to try to keep these smaller interests together because as opposed to what happened in the past were over time they would just be divided amongst all the children and go according to state probate laws so over generations this this issue of fractionation developed a progressed that issue and it's also April friendly law that the law wants to encourage people to draft wills another example of how a progressed this fractionation is the joint tenancy assumption which I always thought was odd but what it says is if you use this old language that are often in Wills like share and share alike and you don't specify that will be considered a joint tenancy with right of survivorship which will cover a little bit more what exactly what that means here in a minute one of the most important things to remember about apron when you're f Nina will is who can inherit trust land a promotion of Indian under any federal law and as we as you know the definition of who is an Indian it depends on what federal law you're looking at under April it's one of the most expansive out of all federal law and it says and this is important because when you're drafting a will and you want to you're figuring out if your client can devise trust property to the to whoever these beneficiaries are they have to fit under this definition of Indian it's extremely expansive and includes any lineal descendant so that's any child grandchild great grandchild can inherit trust land and regardless of their actual status regardless if they're enrolled not enrolled in a particular tribe they are considered a lineal descendant under the definition so what I found in my experience in drafting all the wheels that I've drafted most of them are fairly simple you don't have to refer to a prett if you know the person is considered Indian under the apron ition then they can inherit trust land you can include them in the will if someone is actually not Indian under April they can still inherit but we would use a life estate and they can inherit a life estate which we'll talk about more in a minute with the remainder going to someone who's Indian under that definition when you're first advising your client and at beginning of the process of will drafting is meeting with the client seeing what it is that their wishes maybe for their land and how they want it to pass and discussing with them the various options they may have they may not know that about life estates or the option of you doing a joint tenancy but you want you what you also want to talk to them about ways to consolidate their interest because for instance if someone has five children and they just give everything to the five children equally as tenants in common it'll split up that's that single interest in two fifths and it will be much less you're creating more fractionation that way essentially now that may be what that particular client wants and like i like to say the client is the boss ultimately you do with the what the client wants but you want to have a discussion possibly about ways to consolidate and keep these interests nice and tight in in full and so you have this discussion that one of the best ways to facilitate the Silla Tate consolidation is to take a single interest and give that to a single person that is in my opinion the best way to do it you keep the whole interest in tact what makes that difficult for some people though is that there may be no way to make that totally fair between all the children if you're trying if you have multiple children and you're trying to split them up in some way that's more fair there will be no way to perfectly balanced all these single interests you just get as close as you can but if you're more concerned if the clients more concerned about fairness and everything being totally equal you're going to have to go with a joint tenancy or a tendency in common and split it up that way and then you'll have that discussion that if you do a joint tenancy with right of survivorship that's a way to keep the interest in tact in the end because if you remember it the way that the joint tenancy with survivorship works is say you have three children and you're giving it to those three children they each get a third of that interest but the first one to pass away that interest goes to the remaining two so that's some day down the fine the the interest will consolidate down to that one person that's left so that's another way to help facilitate consolidation but you can also use the tool of a life estate and you know oftentimes people come come to you and say they want to keep the land in their family forever which the law doesn't allow the law doesn't look favorably upon that it calls the dead hand control I usually explain to clients that you have to understand that you're you're a property owner and you have these rights but when you give property away that person inherits those rights and can do what they want to with the property so you can't keep land in the family forever but what you can do is a joint tenancy or a life estate to maybe keep the land in the family at least for a generation or two one thing I do tell people if they feel very strongly about this is i'll put that language in the will always remember you can put language into a will if it's even if it's not legally enforceable you just explain it to the client this is not legally enforceable but at least your wishes will be known so i'll put this into the will something and something that you also have to often explain to clients is this idea of an undivided interest it's it's difficult to wrap your head around initially because when you're explaining what an undivided interest is let's say for example you take a hundred acre allotment and the person owns ten percent of that hundred acres naturally you want to say you have ten acres and that's what your mind wants to do and the person wants to say i have ten acres my ten acres are right here in the corner of this parcel they want to parcel it out you have to explain to them that no that's not what an undivided interest is an undivided interest means you own ten percent of the whole hundred acres and it cannot be divided and you the person may possibly own with 100 or 200 other co-owners which is why fractionation has become is the problem that it is is it's so unwieldy and hard to do anything with these interests when when there's so many co-owners in such small interest but you have to explain to your client when an undivided interest is one of the best ways to identify a person's trust interest is through what we call an IT I report individual trust inventory report that you can receive through the Bureau of Indian Affairs every reservation in the state of Montana has a local BIA office and you can go into the BIA and request an IT I report and they'll print it right off for the for the client if the clients there in person and that is the BIA has a ton of different reports but the iti is the easiest one to read and it lays out exactly every interest that the person owns and it identifies everything that you need to know to write the will and to include that interest in the will what we have here is an example page of an IT I report and what what you're seeing here is a single and interest that this person owns there are a lot of different numbers here and a lot of different things on the iti report what I want to point out the most important parts of the report are these numbers right here are the numbers these under what what it says as tract ID these are the numbers these are very important because these are the numbers that you use to identify the allotment in the will so for example if I was writing a will that includes this interest I would identify it using this number the LA see number 20 for a prefix of em we don't have it we just have zeros there for numbers and then the suffix as well so this would be interest 204 m 0 0 0 0 negative a located in Belknap Montana and that's how I would identify that in the actual will there's a lot of other information on the iti report that's important for your client sometimes you explain to them what you look at this numbers down here and in the bottom right hand corner natick that tells you how much they owned of the interest so this person owns you move the decimal over two spots Oh point two nine seven percent of this acreage 280 cumulative acres and that explains to the person how much of an interest they have how the size of their undivided interest those are the most important numbers of the iti report so as I was saying how should you include a trust interest in a will here's an example of how i would write it out now this is just how i would write it out it doesn't mean a productive to you to decide what language you use what what you think in using your own judgment will be clear enough to the person reading at what you're what you're describing i described it as Blackfeet alignment 2012 49 located in Glacier County Montana I recently had someone say all you need to do are these two numbers so for example that would suffice that I mean there's no legal requirement that you have to have certain words in here you just want it to be clear to the person that's reading it the judge what allotments you're referring to that brings me to one of my main points of the entire presentation what is the most important thing about writing a will what I always tell people is that the will is clear a simple clear will is the best will that's the most important thing you want to be able to say you know when the BIA judge is reading this that they're going to understand it and they're going to know what it is the person wanted to happen upon their passing so that's the principle throughout this whole presentation that the will is clear you don't want to be too complicated too complex in a will you don't want too much language that's indecipherable you want to be perfectly clear so what so we have a example of a will this is a template that originally came from University of Seattle School of Law they were considered the experts on Indian wills back in the day and this is the form that I've been using and at the beginning very very typical of a will you know we identify the testator testatrix I like to include we include a bi enrollment number in there then we have some common language I Jane Doe of the grove on tribe sound and disposing mind realizing the uncertainty of human life not acting under any duress minnis fraud or undue influence here by making publish to declare this to be my last will and testament very standard language we have an article that revokes all prior wills at as you may know when you do a will that automatically revokes in your prior wills it's good language to have even if a person doesn't have a prior will we often just leave that in there the next section in the will template is the identification of family this is a very important section of the will the reason why is because the person may not want to devise or give their property to all these members of their family they may want to disinherit some body which of course is there right that's why they're writing a will you get to decide who you give your property to and who you don't but this is an important section because say you want to give some of your your property to one child but not the other child you want to make sure you identify both those children in this section so it so it doesn't appear to anybody that you just forgot this person or just left them out accidentally so you want to include in here under the identification of family as much information as you can about your family about your spouse your married situation which are these different scenarios whether you're divorced you want to include this information whether you're widowed we have language for every step of that situation then then we go into your children what what I like to do for naming people's children is I like to include their birth date and enrollment number of and mention what tribe they're enrolled in this information is not required by April but I think to be complete and be diligent and to help the BIA probate judge this is what you want to have in here you want to describe the situation whether they're enrolled and roll a bull those type of scenarios you want to include that then we have some language if you they have deceased children we have language to cover a guardian or someone who has been adopted here's some adoption language that we have in the forum you also want to try to include grandchildren and great-grandchildren if at all poss scuze me if at all possible now some people may have a lot a lot of grandchildren great-grandchildren just use your own judgment there then the the next section we have is the personal representative section this is another important section of the will it's it's it's somewhat unusual because in the BIA forum which is where the will is going to be probated it's going to be probated in what the BIA is going to have jurisdiction over the trust land now there may be other probates there may be a tribal court probate or a state court probate for other land the BIA is only going to deal with the trust land in the BIA forum technically the federal government is your personal representative so you do not have one however we like to include personal representative in our will anyway in case it is probated tribally or through the state and we just think it's a good practice to include a personal representative so we have a section with language for now a person doesn't have to name a personal representative then you just explain to them one will be appointed if there's a tribal or state probate now we get to the most important section of the will which is their trust land we have language here f r every situation for a single beneficiary is the most simple way and the way I discussed at the beginning to keep a lot men intact you just go from one allotment to one beneficiary and here's the language that that we have now we have the two situations this is specific allotments to specific people which as I explained is the ideal way to keep interest together and from fractionating but now we have some language for joint tenancy with right of survivorship you want to be very very clear in this language this is the most of one of the most important parts of the will and you want the language to be perfectly clear whether the person wants a joint tenancy with right of survivorship and use those words or whether they want a tendency in common a tendency in common remember is it's the interest to split up amongst the beneficiaries and they can do whatever they want with it this is often what clients pick because it seems to be the more fair option as far as their children can then they can devise and when their interest to their children and so on with the right of survivorship you know you can't sell or devise your interest because there's a that survivor that's going to have that that that interest so we have language for either way of splitting interest up through the joint tenancy or a tendency in common and just be very careful with language in that section the next section is titled trust personalty which is a phrase meaning your IIM account individual Indian Money account which if a person has trust interests that are producing income which is common from leasing grey grazing leases all sorts of leases from the BIA then some money may go into that I am account if you if you own trust interest then you'd have an IIM account well you can devise in your will where that who gets that money and it's also considered in trust it's kind of a strange legal anomaly because it's only money so it doesn't matter if it comes out of trust and you can actually put a non-indian in this section and name them but one distinction you need to you need to realize here is that there may be money in that account at the time the person passes and that's what you're naming in the will but there will also be money that accrues because these probates take a really long time through the BIA and what often happens is money accrues in these accounts from the time the person passes till the time the probate is actually final sometimes that can be a lot of money that money will go where the interest whoever is inheriting the interest that produced that income is going to get that income that accrues so the income that accrues is different than the income that is in the IIM account at the time of passing something to keep in mind about trust personality and dealing with IIM accounts now we have a section that we that in our experience people like it's just be its devising property through a separate writing know what this means is this section will allude to another piece of paper that's going to be with the will and you explain to the client well first you have to explain what what personal property is which can be anything anything from jewelry clothing furniture to vehicles but what this what this does is is this allows that person to make their own list right out the property who it goes to sign it and date it and keep it with the will and it's considered part of the will and incorporate it into the will through the language we have in this in this article six now person doesn't have to do a list and that's what I explain to clients is if you don't do a list it will just fall back to the residue a residuary clause that we'll talk about here in a minute but it's a great option for clients if they want to just write out you know they have a lot of personal property that you they want to deal with we also have a section if they have real property if they have a home now remember there and there was a lot of confusion over the years whether a home was considered in trust or not it's not the BIA is not going to deal with the home but if a person has a home you definitely want to include that in the will and you want included in this section of non trust property and give a legal description of the property and ahead and carefully deal with the home now here's an example of someone if they're if they don't like the idea of using a list in that section before and they don't want to write it out on their own here this is also a section where you can include personal property now we get to the residue a residuary clauses what this what these are our a catch-all provision in the will for land that and property that's not accounted for for example we'll say everything that this person has that wasn't listed before I want it to go this way to this person and this is a very important part of your will because people often inherit trust land its frequent it happens all the time so I often tell people you know could consider this section important because you could inherit land tomorrow after you do your will your will doesn't account for it who would you want that to go to and that's where the residue clause comes in and you can do multiple beneficiaries you can set up your your residue your situate cause what often happens is it mirrors the the trust lands section that you did before but you can come up with other ways to deal with the residue there's a section for a guardian if you have minor children you want to include that there's a section for burial now what I tell people about burial is I often don't include that in the will because you want to you need to explain to your client that sometimes wills are hard to find sometimes you don't find the persons will and so you don't want that person's burial wishes to only be in the will I tell them to tell their personal representative tell somebody what their wishes are in case you can't find the will someone will know what the person's burial arranging for then when you have a standard invalidity clause and then once you're drafted it's time to execute the will what you want to do during the execution of course is make sure that the testator is competent let me say a little bit about competency the competency to do a will is the lowest level of competency under the law what I mean by that is the person doesn't need to know much all they need to know is what property they have and how they're giving it away in the will and if they know that they know enough to do a will so for example even if someone is diagnosed with dementia and they have a hard time comprehending things if at that they can have what they would call lucid moment and if they are executing a will and at that moment know what property they have and how it's going to go they're competent enough to execute a will of course I would want to document that very clearly if the person does have dementia because what what tends to happen is a lot of clients are concerned about who's going to challenge my will and clients bring it up all the time they'll say there's so-and-so as a troublemaker in the family they're going to contest this will is there any way I can keep this person from contesting this and you have to explain to your client no the person always has a legal right to make a claim that the person is either incompetent that did the will or they were unduly influenced but you further explain to your client that those are very difficult claims to prove the burden of proof is on the person making making the claim and the folks that wrote the law realized that there may be a lot of challenges to wills we don't want it to make it very easy so it's not easy to do there's no way to keep someone from making the claim but the safest way to protect from it is to have a perfectly clear and simple will that's the best way to keep yourself safe and that's what I explain to clients but to execute your will you show the testator's competency you need to disinterested witnesses which means disinterested just means there's someone who's not actually taking property from the will we have a self proving affidavit we use which requires a notary that's not legally required but it's an extra step to take which is good to take then you have to talk to the person about what to do with their will the BIA you know used to draft wills and store them back before 2006 now they no longer take wills it's our practice to give the person the original will so you have to explain to them how important that is and ways to safekeep it you explain to them that it's the original wills the only one with real legal effect it's it the one with their ink on it is the important one they always ask should i make copies and you can say yes you know you can make a copy the judge is not going to accept a copy unless it's some extremely rare exceptional circumstance so you advise the client of the importance of that original to keep it in a safe place to let someone know where it's at that's a common issues not being able to find these wills once the person has passed and also explain to your client that they can revoke the will at any time or they can amend it and they just have to I wouldn't you know and revoking it as as easy as saying i revoke this will and tear it up and then it's revoked I wouldn't recommend doing that unless you have something else in place before you do that I consider my job at Montana legal services as support and guidance for folks in the state riding wills I want people to call me that are writing these wills in the state that have any questions or concerns or any particular situations that they need help with I want to make myself available as much as possible so if you're if you're white writing a will out there and you come across a situation that you don't know how to address please give me a call give me a call email me get in touch with me and I'll be available so thank you you