Chapter 14.40
ESTATE ADMINISTRATION
Sections:
14.40.010 Effect of fraud and evasion.
14.40.020 Evidence as to death or status.
14.40.040 Judicial powers and duties.
14.40.050 Records and certified copies.
14.40.055 Oath or affirmation on filed documents.
14.40.070 Renunciation of succession.
14.40.080 Effect of divorce, annulment and decree of separation.
14.40.100 Simultaneous death provisions.
14.40.010 Effect of fraud and evasion.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Probate Code or if fraud is used to avoid or circumvent the provisions or purposes of this Probate Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during their lifetime which affect the succession of the estate. [Res. 2018-42 (20.4.1).]
14.40.020 Evidence as to death or status.
In proceedings under this Probate Code, the following rules relating to determination of death and status are applicable:
A. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent;
B. A certified or authenticated copy of any record or report of a government agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;
C. A person who is absent for a continuous period of five years, during which they have not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. Their death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier. [Res. 2018-42 (20.4.2).]
14.40.030 Practice in Court.
Unless specifically provided to the contrary in this Probate Code or unless inconsistent with its provisions, the Chehalis Tribal Code Rules of Civil Procedure, including the rules concerning vacation of orders, and the Chehalis Tribal Code Rules of Appellate Procedure govern formal proceedings under this Probate Code. [Res. 2018-42 (20.4.3).]
14.40.040 Judicial powers and duties.
A. All proceedings under this Probate Code shall be handled by a Tribal Court judge or the Court Clerk, as is appropriate.
B. The Tribal Court judge may make orders for the sale of personal property at public or private sales for the compounding of debts, for the settlement of an estate as insolvent, for the approval of bonds and all other orders of an ex parte nature as may facilitate the settlement of estates. The orders shall be in writing, signed by the judge issuing the same, and shall be filed and recorded as an entry in the proper record.
C. The Tribal Court judge shall examine the bonds, if any, filed by the estate personal representative or executor with a view to ascertaining their sufficiency and may approve the same. The judge may examine any inventory, sale, bill, any current or final account, and vouchers filed therewith, or examine into the condition of an estate generally. Bond may be waived for good cause shown.
D. The Tribal Court shall have the authority to draft orders requesting property of funds outside the exterior boundaries of the Reservation to be delivered to the Tribal Court for probate in the Chehalis Tribal Court. [Res. 2018-42 (20.4.4).]
14.40.050 Records and certified copies.
The Court Clerk shall keep a file for each decedent of all documents filed with the Tribal Court under this Probate Code and shall keep a numerical index of all such estates to facilitate access to such records. Upon payment of a filing fee, the Court Clerk shall issue certified copies of any document or paper so filed. [Res. 2018-42 (20.4.5).]
14.40.055 Oath or affirmation on filed documents.
Except as specifically provided in this Probate Code, every document filed with the Tribal Court under this Probate Code shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and the penalties for perjury shall follow deliberate falsification therein. [Res. 2018-42 (20.4.5).]
14.40.060 Notice.
A. Notice of a hearing on any petition or other matter is required to be given to any interested person or their attorney if they have appeared by attorney or requested that notice be sent to their attorney. Notice shall be given:
1. By mailing a copy thereof at least 14 days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in their demand for notice, if any, or at their place of residence, if known; or
2. By delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or
3. If the address or identity of any person is not known and cannot be ascertained by reasonable diligence, by posting a copy of the notice in at least three conspicuous public places on the Chehalis Reservation at least 14 days before the time set for the hearing.
B. The Tribal Court for good cause shown may provide for a different method or time of serving notice for any hearing.
C. Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding.
D. A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by the person or their attorney and filed in the proceeding. [Res. 2018-42 (20.4.6).]
14.40.070 Renunciation of succession.
A person (or their personal representative) who is an heir, devisee, person succeeding to a renounced interest, beneficiary under a testamentary instrument or person to take pursuant to a power of appointment exercised by a testamentary instrument may renounce in whole or in part the succession to any property or interest therein by filing a written statement with the Tribal Court not later than six months after the decedent’s death or the time at which it is determined that the person is entitled to take property if such is not known at the time of death. The instrument shall (A) describe the property or part thereof or interest therein renounced, (B) be signed by the person renouncing and (C) declare the renunciation and the extent thereof. Upon proper renouncement, the interest renounced passes as if the renouncing person had predeceased the decedent or donee. [Res. 2018-42 (20.4.7).]
14.40.080 Effect of divorce, annulment and decree of separation.
A person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, they are married to the decedent at the time of death.
If, after executing a will, the testator is divorced or the testator’s marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, personal representative, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. A decree of separation which does not terminate the status of spouses is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will. [Res. 2018-42 (20.4.8).]
14.40.090 Effect of homicide on intestate succession, wills, joint assets, life insurance and beneficiary designation.
A. A surviving spouse, heir, or devisee who criminally and intentionally kills the decedent is not entitled to any benefits passing under this Probate Code and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will to or for the benefit of the killer passes as if the killer had predeceased the decedent.
B. Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of decedent passes as their property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with the survivorship incidents.
C. A named beneficiary of a bond, life insurance policy, or other contractual arrangement who criminally and intentionally kills the principal oblige or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
D. Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section.
E. A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Tribal Court may determine by a preponderance of evidence whether the killing was criminal and intentional for purposes of this section. [Res. 2018-42 (20.4.9).]
14.40.100 Simultaneous death provisions.
A. Where the title to property covered under this Probate Code or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if they had survived except where provided otherwise in this Probate Code.
B. Where two or more beneficiaries are designated to takes successively by reason of survivorship under another person’s disposition of property and there is sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed.
C. Where there is not sufficient evidence that two joint tenants or tenants by the entirety have not died simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have died, the property shall be distributed in the proportion of one to the whole number of joint tenants.
D. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
E. These provisions on simultaneous death shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, contract or insurance. [Res. 2018-42 (20.4.10).]