Care of personal property pending administration.

Summary distribution.

Omitted property.

15.32 Improperly included property.
15.33 Excepted tribes.
15.34 Kaw funds.

AUTHORITY: The provisions of this Part 15 issued under secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; 25 U.S.C. 372, 373, 374, 377, 373a, 373b.

SOURCE: The provisions of this Part 15 appear at 22 F.R. 10524, Dec. 24, 1957, unless otherwise noted.

CROSS REFERENCES: For regulations governing the determination of heirs and approval of wills in the Courts of Indian Offenses, see §§ 11.30-11.32C of this chapter. For regulations governing admission of attorneys to

(a) "Secretary" means the Secretary of the Interior; (b) "Commissioner" means the Commissioner of Indian Affairs, Department of the Interior; (c) "superintendent" means the superintendent of an Indian agency; (d) "examiner of inheritance" means any employee upon whom authority has been conferred by the Secretary or the Commissioner to conduct hearings in accordance with the regulations of this part; (e) "agency" means the Indian agency having jurisdiction over an estate; (f) "Department" means the Department of the Interior. § 15.1

Administration of estates.

The heirs of Indians who die intestate possessed of trust or restricted property shall be determined by examiners of inheritance except as otherwise provided in the regulations in this part. The wills of deceased Indians disposing of trust or restricted property shall be approved or disapproved by examiners of inheritance except as otherwise provided in the regulations in this part. Claims against the estates of Indians shall be allowed or disallowed by examiners of inheritance in accordance with the regulations in this part.

§ 15.2 Notice of hearings.

Hearings to determine the heirs of deceased Indians or to probate their wills shall be conducted only after notice of the time and place of such hearings shall have been posted for 20 days in five or more conspicuous places on the reservation of which the decedent was a resident or, if the decedent was not a resident of a reservation, in five or more conspicuous places in the vicinity of the proposed place of hearing.

§ 15.3 Contents of notice.

The notice shall state that the examiner of inheritance, will at the time and place specified therein, take testimony to determine the heirs of the deceased Indian (naming him) and, if a will is offered

for probate, testimony as to the validity of such will. The notice shall list the presumptive heirs of the decedent, and, if a will is offered for probate, the beneficiaries under such will and the attesting witnesses to the will. The notice shall cite the regulations in this part as the source of the legal authority and jurisdiction for the holding of the hearing. It shall call upon all persons interested in the estate of the deceased Indian, including all persons having claims or accounts against the deceased Indian, to be present at the hearing. shall call upon presumptive heirs to bring with them to the hearing two disinterested persons who are acquainted with and have a direct knowledge of the family history of the deceased. The notice shall state further that the examiner of inheritance may, in his discretion continue the hearing at another time and place to be announced at the original hearing.

§ 15.4 Service on interested parties.

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A copy of the notice of hearing shall be served personally or by mail, addressed to the party at his last known place of residence, on each presumptive heir and each known claimant against the estate, and, if a will is offered for probate, on each beneficiary under and each attesting witness to the will. Such notice must be served or mailed a sufficient time in advance of the date set for the hearing to enable the interested parties to attend the hearing.

§ 15.5 Uncontested estates.

In a case involving no contest, the parties in interest may appear before the examiner of inheritance and waive their right to the 20 days' notice. In that event, the examiner of inheritance may take their testimony immediately. At the time and place set for the hearing in the notice, the testimony and the waiver shall be read aloud in order to afford any other persons who are present an opportunity to offer objections and to establish their interest. The examiner of inheritance will then proceed with the hearing in the usual manner if objections are offered.

§ 15.6 Minors represented at hearings.

Minors in interest must be represented at the hearing by guardians ad litem appointed by the examiner of inheritance.

§ 15.7 Attorneys.

Interested parties may appear in person or by attorneys admitted to practice in the State where the hearing is held. Attorneys must secure powers of attorney from their clients authorizing them to appear in the proceeding. Attorneys will be required to adhere to the rules of evidence of the State in which the evidence is taken.

§ 15.8 Oaths, authority to administer. Examiners of inheritance are authorized to administer oaths.

§ 15.9 Compulsory attendance of wit

nesses.

The examiner of inheritance may issue a subpena under 25 U.S.C. 374 to any person whose testimony he believes to be material to the proper disposition of any estate set for hearing. Upon the failure or refusal of any person to whom a subpoena shall have been issued to appear at the hearing or to testify, the examiner of inheritance may file a petition in the appropriate United States District Court requesting that the court issue an order requiring the appearance and testimony of the witness.

§ 15.10 Examination of witnesses.

All witnesses shall be examined under oath, and their testimony shall be reduced to writing. Any interested party may cross-examine any witness. Affidavits or depositions may be introduced in evidence if the affiants or deponents are present at the hearing and are available for cross-examination by interested parties, or if, in the case of depositions, interested parties have been given a reasonable opportunity to be present when the depositions were taken or to submit counter interrogatories to be answered by the deponents.

§ 15.11 Limiting number of witnesses.

When the evidence seems clear and conclusive, the examiner of inheritance may, in his discretion, limit the number of witnesses to be formally examined upon any matter.

§ 15.12 Wills, validity attested.

No action shall be taken on the will of a deceased Indian until testimony shall have been taken as to the testamentary capacity of the decedent to execute the will and as to the circumstances surrounding its execution. A reasonable

effort shall be made to procure the testimony of the attesting witnesses to the will; or, if their testimony is not reasonably available, an effort shall be made to identify their signatures through other evidence.

§ 15.13 Supplemental hearing.

When it appears that a supplemental hearing is necessary to secure material evidence, such a hearing may be conducted after notice has been given to those persons on whom notice of the original hearing was served and to such other persons as the testimony taken at the original hearing indicates may have a possible interest in the estate.

After the completion of the hearing or hearings, the examiner of inheritance shall make up the record on the estate. The record shall contain: (a) A copy of the public notice of hearing; (b) copies of notices served on interested parties; (c) proof of service of notices; (d) the evidence received at the hearing or hearings, which should include, among other things, copies of any pertinent marriage records and decrees of divorce, certificates of appraisement of restricted property, information as to whether the decedent lived on trust land and, if so, whether any portion of the same could be termed a homestead, and, if a homestead right is involved and that right is limited in value by the law of the State governing descent, an additional certificate of appraisement showing separately the value of the land claimed as a homestead and the improvements thereon; and (e) the decision, if made by the examiner of inheritance.

The examiner of inheritance shall, except as provided in § 15.21, decide the issues of fact and law involved in the proceeding and shall incorporate his findings and conclusions in a decision. Every decision determining the heirs of an Indian who died intestate shall cite the law of descent and distribution in accordance with which the decision was made. Every decision approving the will of an Indian shall state the devisees and legatees who take under the will and the particular property which each is to receive, and shall construe any ambiguous provision of the will. Every decision shall state those claims against the estate which are allowed and

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those claims which are disallowed. copy of the decision shall be mailed to each person who is found by the Examiner to be entitled to share in the estate, to each person whose claim to share in the estate was considered and denied by the Examiner, and to the Superintendent.

§ 15.16 Distribution of estate.

Distribution of an estate may be made by the superintendent after 60 days have elapsed from the date upon which notice of the decision is mailed to the interested parties unless, within that period, a petition for rehearing is filed pursuant to § 15.17 or unless otherwise directed by the Commissioner.

§ 15.17 Rehearing.

(a) Any person aggrieved by the decision of the examiner of inheritance may, within 60 days after the date on which notice of the decision is mailed to the interested parties (or within such additional period as the Secretary, for good cause, may allow in any case), file with the superintendent a written petition for rehearing. Such a petition must be under oath and must state specifically and concisely the grounds upon which it is based. If the petition is based upon newly discovered evidence, it must state a justifiable reason for the failure to discover and present the evidence at the hearing, and the petiton must be accompanied by the sworn statement of at least one disinterested person having knowledge of the facts. The superintendent, upon receiving a petition for rehearing, shall promptly forward it to the examiner of inheritance. Such a petition shall act as a supersedeas unless otherwise directed by the examiner.

(b) If the examiner believes that proper grounds are not shown, the rehearing will be denied by the examiner, who will issue his order setting forth the reasons for the denial of the petition. Copies of the order shall be furnished to the petitioner, the superintendent, and to those persons who share in the estate.

(c) If the petition appears to show merit, the examiner shall cause copies of the petition and supporting papers to be served on those persons whose interest in the estate might be adversely affected by the granting of the petition. The examiner shall allow all persons served with copies of the petition a reasonable specified time in which to submit answers or legal briefs in opposition to the peti

(a) Within a period of 3 years from the date of a decision by an examiner of inheritance under the regulations in this part, but not thereafter, any person claiming an interest in the estate who had no actual notice of the original proceedings and who was not on the reservation or otherwise in the vicinity at any time while the public notices of the hearing were posted may petition in writing for reopening of the case. Any such petition shall be addressed to the examiner of inheritance and shall be filed with or mailed to him at his headquarters. All grounds for the reopening must be set forth fully. If based on alleged errors of fact, all such allegations must be under oath and must be accompanied by affidavits or other supporting evidence.

(b) If he believes that proper grounds are not shown, the petition will be denied by the examiner, who will issue his order setting forth the reasons for the denial of the petition. Copies of the order shall be furnished to the petitioner, the superintendent, and to those persons who share in the estate.

(c) If the petition appears to show merit, the examiner shall cause copies of the petition and all papers filed by the petitioner to be served on those persons whose interest in the estate might be adversely affected by the granting of the petition. An opportunity to answer the petition or to file briefs shall be afforded to all persons who receive copies of the petition. The answers or briefs must be filed within such reasonable time as the examiner may specify. Thereafter, the case will be reconsidered and appropriate action will be taken, which may consist in adhering to the former decision, or in modifying or vacating it, or in making any further or other order which the examiner deems warranted. Copies of the examiner's action shall be furnished to the petitioner, to all persons who received copies of the petition, and to the superintendent.

§ 15.19 Appeals.

(a) Any person aggrieved by the action taken by the examiner of inheritance on a petition for rehearing or on a petition for reopening may, within 60 days after the date on which notice of the examiner's action is mailed to the interested parties (or within such additional period as the Secretary, for good cause, may allow in any case), file with the superintendent a written notice of appeal to the Secretary. Such notice of appeal shall state specifically and concisely the reasons for the appeal. Copies of the notice of appeal shall be furnished by the appellant to the examiner of inheritance and to all parties who share in the estate under the decision of the examiner, and the notice of appeal shall contain a certificate stating that this has been done.

(b) The appeal and the record in the proceeding, including all papers relating to the petition for rehearing or reopening, shall be submitted to the Secretary through the Commissioner.

(c) The appellant and any other interested party may, within 60 days from the date on which a notice of appeal is filed, submit written arguments to the Secretary.

(d) No distribution of any estate shall be made during the pendency of an appeal.

(e) Copies of the decision of the Secretary on the appeal will be mailed to (1) the examiner, (2) the superintendent, (3) the Commissioner, (4) each person who shares in the estate under the decision of the Secretary, and (5) each person whose claim to share in the estate is considered and denied by the Secretary.

§ 15.20 Presumption of death.

In accordance with the regulations in this part pertaining to other hearings, an Examiner of Inheritance may hear and determine the issue of whether an Indian, by reason of his unexplained absence, is to be presumed dead. If he concludes that the Indian is to be presumed dead, the Examiner shall proceed as in cases where the fact of death is established without such a presumption. § 15.21

Escheat.

When the record in any estate indicates that an Indian has died intestate without heirs, the record shall be transmitted to the Secretary for decision.

§ 15.22 Probate fees, by whom paid and

amount.

(a) Upon a determination of the heirs to any trust or restricted Indian property of the value of $250 or more or to any allotment, or after approval of any will disposing of such trust or restricted property, the following fees shall be paid (1) by the heirs, or (2) by the beneficiaries under the will, or (3) from the estate of the decedent, or (4) from the proceeds of the sale of the allotment, or (5) from any trust funds belonging to the estate of the decedent:

On estates appraised at: $250 and not exceeding $1,000‒‒‒‒‒ Over $1,000 and less than $2,000__-$2,000 and not exceeding $3,000---Over $3,000 and not exceeding $5,000Over $5,000 and not exceeding $7,500. Over $7,500‒‒‒‒‒

$20.00 25.00 80.00 50.00 65.00 75.00

(b) Similar fees shall be collected in all estates probated by the Department in compliance with tribal resolutions requesting that the Department provide probate service.

§ 15.23

Creditors' claims, filing.

(a) Persons having claims against the estates of deceased Indians may file the same with the superintendent of the examiner of inheritance at any time after the death or the decedent and up to and including the time of hearing.

(b) The claims of non-Indians must be filed in triplicate. They must be itemized in detail and sworn to before a notary public. Each such claim must be supported by an affidavit of the claimant or someone in his behalf that the amount is justly due from decedent, that no payments have been made on the account that are not credited thereon, and that there are no offsets to the knowledge of affiant.

(c) Indians may submit claims against the estate of a deceased Indian at the hearing and subject themselves to examination under oath relative thereto.

(d) Claims for care will not receive favorable consideration unless clear and convincing proof is offered showing that the care was given on a promise of compensation and that compensation was expected.

(e) No claims filed after the conclusion of the hearing shall be considered unless the claimant can present satisfactory proof that he had no actual notice of the hearing and that he was not

on the reservation or otherwise in the vicinity during the period when the public notices of the hearing were posted.

(f) Any person who has filed a claim must, if so directed by the examiner of inheritance, present himself for examination thereon at the hearing or at a supplemental hearing.

§ 15.24 Statute of limitations.

The claims of non-Indians that have existed for more than the period prescribed by the State laws applicable to limitation of actions shall not be allowed. § 15.25 Priority of claims.

(a) Claims shall be allowed priority in payment in the following order, except as is otherwise provided in paragraph (b) of this section:

(1) Probate fee;

(2) Claims for expenses not previously authorized, for last illness not in excess of $500, and for funeral not in excess of $250;

(3) Unsecured claims of indebtedness to the United States or any of its agencies;

(4) Unsecured claims of indebtedness to the tribe of which the decedent was a member or to any of its subsidiary organizations;

(5) [Reserved]

(6) Claims of general creditors, including that portion of expenses of last illness not previously authorized in excess of $500 and that portion of funeral charges not previously authorized in excess of $250.

(b) The preference of the probate fee and of other claims may be deferred, in the discretion of the examiner, in making adjustments or compromises beneficial to the estate.

(c) No claims of general creditors shall be allowed if the value of the estate is $1,500 or less and the decedent is survived by a spouse or by one or more minor children. If the estate is valued in excess of $1,500, or if the estate is valued at $1,500 or less and the decedent is not survived by a spouse or by any minor children, the claims of general creditors may be allowed in the discretion of the examiner of inheritance. If the income of the estate is not sufficient to permit the payment of allowed claims of general creditors within three years from the date of allowance, the unpaid balance of such claims shall not be en