If you do not have a will, your trust property will pass under the 2004 federal probate code or under approved tribal probate code, rather than under state laws.
Your trust land will be inherited by your immediate family with distribution first to your spouse and children or grandchildren or possibly great grandchildren. If there are none, then the land passes to your parents or brothers and sisters. All of these people will be eligible le to inherit your trust property as long as each meets the definition of Indian as provided in the American Indian Probate Reform Act (AIPRA), or these people are your descendants within two generations of an Indian, or if they already are co-owners in the same parcel. Land not passing to one of the people above will then pass to the tribe where the land is located.
If you have a spouse and other eligible heirs, your surviving spouse will inherit one-third of any money in your IIM account a the time of your death, and all of the money produced from your interest in trust or restricted land during your spouse's lifetime. Your other heirs get the remaining two-thirds of any money in your IIM account at the time of death, and the remaining ownership interest in the trust or restricted land. Your spouse may also continue to live in a family home located on allotted land.
If your spouse, but no other eligible heirs survive you, the spouse gets your entire IIM account and during their lifetime, the money produced from your land interest. The spouse may continue to live in a family home located on allotted land. The remaining ownership interest in land goes to the tribe in jurisdiction.
If your ownership interest is less than five percent of the total, your spouse may continue to live in the family home on the parcel and then AIPRA will limit inheritance first to the oldest eligible child, and then to the oldest eligible grandchild or oldest eligible great grandchild.
By creating a will, your land can be tranferred in trust to any Indian person, the tribe in jurisdiction or an Indian co-owners. You can also transfer your land in trust to any of your descendants, including your children, grandchildren, great grandchildren and great-great grandchildren, even if they are not Indian. You can also transfer your interests out of trust to anybody you choose. Even if a spouse is not mentioned in a will, the spouse may inherit some of the trust property.
Additionally, the Department of the Interior may purchase, for fair market value, interest in lands that are less than five percent of the total during the probate proceeding without the consent of the heirs. This authority does not apply if the interest is passing through a valid will, or if the heirs are living on the land. Spouses living on a land parcel are also protected.
Cherokee Nation Real Estate Services
P. O. Box 948
Tahlequah, OK 74465
Ginger Brown, Director