Chapter 14.80
PROBATE OF WILLS
Sections:
14.80.010 Duty to present will for probate.
14.80.020 Proving, contesting and admitting will.
14.80.025 Petition for letters of testamentary.
14.80.030 Qualification of executor or personal representative.
14.80.040 Appointment of executor or personal representative.
14.80.050 Duties of executor or personal representative – Bond.
14.80.080 Distribution – Closing estate.
14.80.090 Property discovered after estate closed.
14.80.010 Duty to present will for probate.
Every custodian of a will shall deliver the will to the Tribal Court within 30 days after receipt of information that the testator is deceased. Any will custodian who fails or neglects to do so shall be liable for damages sustained by any person injured thereby. [Res. 2018-42 (20.6.1).]
14.80.020 Proving, contesting and admitting will.
A. Proof of Will.
1. Upon initiating the probate of an estate, the will of the decedent shall be filed with the Tribal Court. The will may be proven and admitted to probate by filing the affidavit of an attesting witness which identifies such will as being the will which the decedent executed and declared to be their last will.
2. If none of the attesting witnesses is available, the Tribal Court may allow proof of the will by an affidavit, testimony or other evidence that the signature of the testator or at least one attesting witness signature is genuine.
B. Contest of Will.
1. At any time within 90 days after a will has been admitted to probate any person having an interest in the decedent’s estate may contest the validity of the will by filing a notice and affidavit with the Tribal Court.
2. The Tribal Court shall take no further action with respect to the probate of the estate, but shall set a date and hour to hear evidence concerning the decedent’s capacity to execute a valid will and the circumstances surrounding its execution.
3. Every reasonable effort shall be made to procure the testimony of the attesting witnesses to the will, the drafter of the will, the notary public certifying the signatures to the will, or other persons who may have been present during the execution of the will. If none of these persons are available, then the Tribal Court may identify signatures to the will through other evidence.
C. Admission of Contested Will to Probate. Upon considering all relevant evidence concerning the will, the Tribal Court shall enter an order affirming the admission of the will to probate or rejecting such will and ordering that the probate of decedent’s estate proceed as if the decedent had died without executing the will. [Res. 2018-42 (20.6.2).]
14.80.025 Petition for letters of testamentary.
A petition for letter testamentary1 may be made by any person having possession of decedent’s will. The petition must be in writing, signed by the petitioner, and shall state the basis for the Tribal Court’s jurisdiction, the names of the heirs of the decedent, if known, and the name or names of any person specified in the will as executor or personal representative and the address of such person, if known. [Res. 2018-42 (20.6.2).]
14.80.030 Qualification of executor or personal representative.
The Tribal Court shall appoint an executor or personal representative to administer the estate. The executor and personal representative shall be a competent adult and preference shall be given, if such persons are otherwise qualified, to the person named in the will as such, followed by the surviving spouse, child of the decedent over 18 years of age with preference give in descending order of age, other blood relatives in order of their closeness of relationship, any adult tribal member or any adult person. [Res. 2018-42 (20.6.3).]
14.80.040 Appointment of executor or personal representative.
A. Upon receipt of a petition for letters testamentary, the Court Clerk shall schedule a hearing at which an executor or personal representative will be appointed and letters testamentary authorized. The hearing shall be scheduled so that adequate notice to interested parties can be made.
B. Notice of the hearing shall be made by the petitioning party to all persons named as takers under the will, and to all known heirs of the decedent if different from the named takers, and notice shall also be posted in a conspicuous place in the Tribal Court and administration buildings.
C. At the hearing, the Tribal Court shall first determine the validity of the decedent’s will and then appoint an executor or personal representative to administer the estate according to the terms of this Probate Code and decedent’s will.
D. Letters testamentary shall be granted to the person appointed as executor or personal representative upon their taking an oath, to be prescribed by the Tribal Court, to the effect that the executor or personal representative will faithfully and honestly administer the estate and upon the filing of a bond, if required. [Res. 2018-42 (20.6.4).]
14.80.050 Duties of executor or personal representative – Bond.
The duties of the executor or personal representative shall be the same as those prescribed in this Probate Code for the administrator of an intestate estate, and they shall file a bond in a like manner and subject to the same exceptions. [Res. 2018-42 (20.6.5).]
14.80.060 Creditors.
Notice to creditors, determination of the validity of claims, and the payment of claims shall be handled as prescribed for intestate estates in this Probate Code. [Res. 2018-42 (20.6.6).]
14.80.070 Accounting.
Prior to the distribution of all remaining disbursements, after payment of all claims and other payments, the executor or personal representative shall submit to the Tribal Court, for approval, an accounting of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for final distribution of remaining payments including the computation of any attorney’s or executor or personal representative fees for which approval for payment is sought from the Tribal Court. [Res. 2018-42 (20.6.7).]
14.80.080 Distribution – Closing estate.
A. When the Tribal Court is advised that an estate is ready to be distributed, the Tribal Court shall order such distribution according to the provisions of the decedent’s will or the rules of intestate succession, whichever is applicable, and according to the rules set forth in this Probate Code.
B. The estate shall be closed and the personal representative, executor or administrator of the estate dismissed and any bond released upon filing with the Tribal Court an affidavit and receipts showing that the estate is fully distributed and administered and ready to be closed. [Res. 2018-42 (20.6.8).]
14.80.090 Property discovered after estate closed.
An estate may be reopened whenever necessary to dispose of a decedent’s property discovered after their estate has been closed. The Tribal Court shall order distribution of the property to the person or persons entitled thereto after making whatever orders appear necessary to assure a just participation of the after discovered property. [Res. 2018-42 (20.6.9).]
A letter of testamentary, sometimes called a “letter of administration” or “letter of representation,” is a document granted by a probate court. The document simply states that you are the legal executor or personal representative for a particular estate and that you have the authority to act as such.