1. “ETHICAL CONSIDERATIONS IN WILL DRAFTING AND ESTATE PLANNING ON THE NAVAJO NATION” 2016 Annual NNBA Conference

2. Client Problem #1: Son walks into your office seeking assistance with obtaining property (e.g., housing lease, livestock, grazing permit, vehicle, mobile home) belonging to deceased parent using a “durable power of attorney”:

3. Client Problem #2: Daughter walks into your office seeking assistance with obtaining a will POA for her parent who does not have the capacity to execute the document:

4. Client Problem #3: Person walks into your office asking your assistance with a will:

5. WILL-DRAFTING CLINCS: Beginning in 2014, DNA-People’s Legal Services and the Tribal Wills Project at University of Denver Sturm College of Law teamed up to successfully to host estate-planning clinics (wills, MPOAs, BIs): May 2014—Ramah: Planned 41 Estates Jan. 2015—Crownpoint & Ramah: 57 Estates May 2015—Crownpoint & Ramah: 71 Estates Jan. 2016—Nageezi & Nenahezad: 107 Estates

6. Overview A. CULTURAL AWARENESS, ETHICS & UNIQUE CONSIDERATIONS OF INDIAN ESTATE PLANNING B. THREE SOVEREIGNS, ONE ESTATE—NAVAJO PROBATE C. THREE SOVEREIGNS, ONE ESTATE—FEDERAL PROBATE D. THREE SOVEREIGNS, ONE ESTATE—STATE PROBATE E. COBELL LAND BUY-BACK PROGRAM PSA

7. Estate Planning Is Scary *Facing your own mortality *Focusing your thoughts on death *Envisioning your heirs without you *All amplified by cultural norms

8. Awareness of Local Tradition *Matrilineal vs. Patrilineal: view a “fair” distribution very differently—most state rules of intestacy are based on social norms of a segment of Anglo-American society 200 years ago. Oral Wills—Navajo Common Law recognizes the validity of an oral will when it is made by the testator in the presence of all of his or her immediate family and all members of the immediate family agree that the testator orally made known his or her last will before them. In the Matter of the Estate of Howard, 7. Nav. R. 262, 266 (Nav. Sup. Ct. 1997).

9. Basic Requirements for a Will under AIPRA & State Law: * Be written * Executed by a person who has attained the age of 18 years and has testamentary capacity * Be signed by two disinterested adult witnesses **Best practice (and DNA’s practice) is for will to be valid under AIPRA (American Indian Probate Reform Act) and validly executed under state and tribal law

10. Capacity: Capacity is “the ability to remember, at least in a general and approximate way, the nature and extent of one’s property, to recognized those who are the natural objects of one’s bounty, and to comprehend the nature of the testamentary act itself.”

11. Ethics * Who is the client? -Not who is speaking, but who are you working for? See Rule 1.6 Confidentiality of Information * “What do you think I should do?” is the worst question. -Response: “What’s important is what you want to do, not what I think.”

12. Duress/Undue Influence *Best practice is to exclude all beneficiaries from any conversations or meetings regarding the will. *Any involvement by potential beneficiaries should be carefully documented and considered by the attorney.

13. Duress/Undue Influence: * Definition is: (1) that the testator was susceptible to being dominated by another; (2) that the person allegedly influencing the testator in the execution of the will was capable of controlling testator’s mind and actions; (3) that such person exerted influence upon the testator of a nature calculated to induce or coerce the testator to make a will contrary to his own desires; and (4) that the will is contrary to the decedent’s own desires.

14. Phrasing is Helpful “Who would you like to take over your house?” NOT “Who do you want the house to go to when you die?”

15. Ethics *Document, Document, Document! *Attention to Detail—go over the will with client, don’t just have them read it. *Married Couples—No “joint wills”, must be on the same page.

16. David Armstrong’s Rules *Treat everyone like your own grandparents *Take cues from you clients *Ask open ended questions *Avoid “Being here to help” *Actually listen, don’t actively listen *Dress modestly *Conduct yourself as a guest

17. Unique Drafting Considerations **Client may acquire property interests after the will is drafted, and it is not likely they will come back to have their will updated. Ex.: “I give all other trust or restricted property that I may own at my death, or that may be distributed to me after my death, wherever located, that is not otherwise successfully given away under this will, to my children in equal shares.”

18. Unique Aspects of Execution *Don’t use the word “execution” *Self-proving wills expedite the entire probate process, and therefore it is best to use the affidavit to accompany a will. This also eliminates the need for the witnesses to testify later regarding the signing. *Make sure 2 disinterested witnesses will be available, and a translator when necessary.

19. Revocation *Revocation by destruction is allowable. *Revocation by will, codicil, or other writing is allowable. *Revocation cannot occur by operation of state law (such as divorce).

20. Before Client Leaves *Do they need Healthcare Directive/Medical Power of Attorney? *Do they have minor children that may need guardianships? *Where will they store the will? *Will they talk about their estate plan with those that are important to them?

21. Medial POA/Healthcare Directive Healthcare Power of Attorney: a signed, witnessed document that appoints a health care agent to make all health care decisions for you with the help of your physician if you should lose the ability to make health care decisions yourself. Why Might I Need One? *You may be temporarily or permanently unable to make health care decisions for yourself *Can help avoid a costly guardianship proceeding *Helps avoid arguments by making wishes known

22. Funeral Arrangements *If client has engaged in some form of funeral planning this should be incorporated into their overall estate plan. *If there are specific instructions for the funeral they may be included in the will, but more appropriately they can be included in a separate document.

23. Power of Attorney for Finances *Gives another person authority to make financial decisions for you. *You should consider these very carefully (a.k.a. license to steal). -Best practice is to have client prove need to you

24. Overview A. CULTURAL AWARENESS, ETHICS & UNIQUE CONSIDERATIONS OF INDIAN ESTATE PLANNING B. THREE SOVEREIGNS, ONE ESTATE—NAVAJO PROBATE C. THREE SOVEREIGNS, ONE ESTATE—FEDERAL PROBATE D. THREE SOVEREIGNS, ONE ESTATE—STATE PROBATE E. COBELL LAND BUY-BACK PROGRAM PSA

25. Navajo: All unrestricted property found within the territorial jurisdiction of the Court. Federal: Only restricted or trust property found within the decedent’s estate. Jurisdiction: State: Any unrestricted property found within the territorial jurisdiction of the Court.

26. 8 N.N.C. § 1 Jurisdiction The Family Court of the Navajo Nation shall have original jurisdiction over all cases involving the descent and distribution of deceased Indians’ unrestricted property found within the territorial jurisdiction of the Court.  7 N.N.C.§ 602(D): There shall be commenced and prosecuted within five years after the cause of action accrues, and not afterward, all probate actions.  Estate of Goldtooth Begay No. 2, 6 Nav.R. 405, 406 (Nav. Sup. Ct. 1991). Navajo Probate Process:

27. If there was no will 8 N.N.C. § 2 Determination of heirs When any member of the Navajo Nation dies leaving property, any member claiming to be an heir of the decedent may bring suit to determine the heirs of the decedent and to divide among the heirs the decedent’s property. The courts shall apply the custom of the Navajo Nation as to inheritance if such custom is proved. Otherwise, the court will apply state law in determining who are the heirs

28. If a person had a will 8 N.N.C. § 3 Approval of wills If a member of the Navajo Nation dies leaving a will disposing of property, the executor or any interested party shall petition the court to deem the will valid. Notice and the opportunity to be heard shall be given to all persons who might be heirs of the decedent. A will is valid if the decedent had a sane mind and understood what he or she was doing when he or she made the will and was not subject to any undue influence of any kind from another person. The will must be made in accordance with a proved Navajo custom or made in writing and signed by the decedent in the presence of two witnesses who also signed the will.

29. Navajo Rules of Probate Procedure:  Rule 1 : Petition for Administration or Probate of Will  Rule 3 : Who May be Administrator or Executor  Rule 6 : Persons Entitled to Distribution of the Estate in the Absence of a Will (i.e., rules of intestacy).  Rule 7 : Notice of Hearing shall be published in the Navajo Times (cost of publication is usually more than $200). You are responsible for sending the Notice of Publication to the Navajo Times, and the Affidavit of Publication to the Court (2 or 3 weeks?)  Rule 8 : Small Estates (less than $500)  Rule 9 : Probate of Wills

30. Home Site or Residential Leases: AIPRA: In its current form, applies to improvements permanently affixed to the land. 25 U.S.C. 2206(a)(5)(A) 25 U.S.C. 2206(h)(1)(B) & (C). However, 25 C.F.R. 15 and 43 C.F.R. 30 which implement the act, specifically state: “We will not probate the following property: (1) Real or personal property other than trust or restricted land or trust personalty in an estate of a decent.” 25 C.F.R. § 15.10. * Homes and Homesite Leases must be probated through the Navajo Nation Courts. Navajo Land Offices and BIA require probate orders to transfer homesite leases and residential leases, as does NHA to transfer home ownership absent designated beneficiary.

31. Overview A. CULTURAL AWARENESS, ETHICS & UNIQUE CONSIDERATIONS OF INDIAN ESTATE PLANNING B. THREE SOVEREIGNS, ONE ESTATE—NAVAJO PROBATE C. THREE SOVEREIGNS, ONE ESTATE—FEDERAL PROBATE D. THREE SOVEREIGNS, ONE ESTATE—STATE PROBATE E. COBELL LAND BUY-BACK PROGRAM PSA

32. Navajo: All unrestricted property found within the territorial jurisdiction of the Court. Federal: Only restricted or trust property found within the decedent’s estate. Jurisdiction: State: Any unrestricted property found within the territorial jurisdiction of the Court.

33. What Does AIPRA Apply To? *Short Answer: ALLOTMENTS. AIPRA is limited to lands which are held in trust for individual Native Americans by the federal government, including, ”trust” or “restricted fee” Land that is on and/or off the reservation. *It does not apply to land held in “fee simple” regardless of whether that land is on- or off- reservation.

34. Brief History of AIPRA: 1983 : Congress passed Indian Land Consolidation Act (ILCA) to address problem of fractionalization on Indian Allotments. 1987-1997 : The U.S. Supreme Court has twice overturned the escheat provision of the ILCA as a 5 th Amendment taking of property without just compensation. See Hodel v. Irving, 481 U.S. 704 (1987) and Babbit v. Youpee, 519 U.S. 234 (1997). 2000 and 2004 : Congress amends the ILCA two more times to become AIPRA, taking effect June 20, 2006— applies to the probate of estates of those who die after this date.

35. Brief History of AIPRA: *Before AIPRA, BIA had been applying state law when probating estates that were held in trust. Without access to counsel, virtually all estates were intestate *Under AIPRA, estate-planning in Indian Country can be a complex blend of federal, state and tribal laws (sometimes 3 separate probates!) *AIPRA authorizes funding for will-drafting and estate- planning assistance in Indian Country *Creates federal probate code for the first time.

36. How Does AIPRA Apply? AIPRA operates in three modes : When person dies intestate (without a will) there are two sets of rules: 1. For interests of 5% or more 2. For interests under 5% 3. When a person has a valid will, AIPRA’s third mode places limitations on who may take under a will.

37. The 5% Divide: Without valid will and with interest 5% or more of total parcel: *Spouse receives life estate (whether tribal citizen or not) *Eligible heirs take in equal shares and by representation *Heirs are spouses & children, but if none survive, then: -grandchildren, great-grandchildren, parents, siblings *If none of the above, then to the tribe *If no tribe has jurisdiction, then to other co-owners of the parcel who may purchase the shares *If no other co-owners, then to the Secretary for sale and proceeds placed into a land acquisition account.

38. The “Single Heir Rule”: Without valid will and with interest less than 5% of total parcel: *Spouse receives life estate only if s/he was previously residing on the parcel. If s/he was not living on the land at the decedent’s death, s/he will not receive any interest in the trust estate. After the spouse’s interest, remainder passes to a single heir : *Oldest surviving child *If no children, then oldest surviving grandchild, then to oldest surviving great-grandchild *If no eligible great-grandchild, then the trust estate passes to the tribe (escheats).

39. All Heirs Must be “Eligible”  As defined by 2206(a) “ Eligible heir ”: Can be any descendant, sibling or parent who:  Is an Indian  Either a lineal descendant within 2 degrees of consanguinity of an Indian (i.e., children or grandchildren of an Indian)  Or an existing co-owner of the parcel

40. Who is an Indian? (For purposes of AIPRA) 1. Anyone who is an enrolled member of a federally recognized tribe 2. Anyone who is eligible to be a member 3. Anyone who owned trust or restricted land on October 27, 2004 4. ½ or more Indian blood, Alaskan Native or Eskimo 5. A person who meets the definition of Indian under the Indian Reorganization Act.

41. Intestate Provision for Trust Personalty  “Personalty” is any accounts or funds ($) held by the Secretary of the Interior on behalf of the decedent, usually an IIM account:  Regardless of the interest in the land: *Surviving spouse receives 1/3 share *If no “eligible” heirs all to the spouse *If no spouse, all to the “eligible” heirs

42. Trust Personalty and Wills  Trust Personalty ($) may be given to anyone, but if the devisee is ineligible under AIPRA then the money will be taken out of trust.  Generally, the balances in IIM accounts are small enough the removal from trust does not pose significant liabilities.

43. Unique AIPRA Will Provisions *Unless explicitly stated, AIPRA presumes that a devise to more than one person is in Joint Tenancy with the right of survivorship. *So a class gift “to my children” will result in a joint tenancy, not tenants in common as it would be under state law.

44. IIMs and ITIs: *The Office of the Special Trustee for the American Indian (OST) manages all the Individual Indian Money (IIM) Accounts, while BIA manages the underlying land interests (Gallup & Crownpoint). *An ITI-Individual Trust Inventory lists all the interests a client has in different parcels. *Clients may not know where there trust property is, or even be certain if they have any. -Best practice is to have every client complete an ITI and IIM Report request

45. Overview A. CULTURAL AWARENESS, ETHICS & UNIQUE CONSIDERATIONS OF INDIAN ESTATE PLANNING B. THREE SOVEREIGNS, ONE ESTATE—NAVAJO PROBATE C. THREE SOVEREIGNS, ONE ESTATE—FEDERAL PROBATE D. THREE SOVEREIGNS, ONE ESTATE—STATE PROBATE E. COBELL LAND BUY-BACK PROGRAM PSA

46. Navajo: All unrestricted property found within the territorial jurisdiction of the Court. Federal: Only restricted or trust property found within the decedent’s estate. Jurisdiction: State: Any unrestricted property found within the territorial jurisdiction of the Court.

47. State *Jurisdiction: Any personal or real property outside the territorial limits of Navajo Nation that is not an allotment. *Small Estate Affidavit: $50,000 limit under N.M. Law. *Designated beneficiaries (e.g., bank accounts, retirement savings)

48. Example: Paul is an enrolled member of the Navajo Nation living near Standing Rock, NM in a mobile home, within a valid home site lease, two pickup trucks and the majority of his personal effects. Paul also owns 4 allotment interests on the Navajo Nation, as well as a condominium in fee simple in Las Cruces, NM:

49. Answer: Paul is an enrolled member of the Navajo Nation living near Standing Rock, NM in a mobile home, within a valid home site lease, two pickup trucks and the majority of his personal effects. Paul also owns 4 allotment interests on the Navajo Nation, as well as a furnished condominium in fee simple in Las Cruces, NM: Navajo: mobile home, homesite lease, trucks, personal effects Federal: 4 allotment interests State: furnished condominium

50. Overview A. CULTURAL AWARENESS, ETHICS & UNIQUE CONSIDERATIONS OF INDIAN ESTATE PLANNING B. THREE SOVEREIGNS, ONE ESTATE—NAVAJO PROBATE C. THREE SOVEREIGNS, ONE ESTATE—FEDERAL PROBATE D. THREE SOVEREIGNS, ONE ESTATE—STATE PROBATE E. COBELL LAND BUY-BACK PROGRAM PSA

51. Cobell Land Buy-Back PSA: “You may choose to sell some, all, or none of your interests included in this offer.” **Participation in the Cobell Buy- Back Program is Voluntary

52. Land Buy-Back Program *Only purchase from willing sellers, only what they want to sell and only trust or restricted fee interests *45 days to return the offer packet (2 or 3 rounds of offers?) *Each sale results in contribution to the Scholarship Fund