WHITE MOUNTAIN APACHE

PROBATE CODE




TABLE OF CONTENTS



CHAPTER ONE - GENERAL PROVISIONS
SECTION 1.1 HEARING; NOTICE; WAIVER OF NOTICE
SECTION 1.2 GUARDIAN AD LITEM REQUIRED
SECTION 1.3 WITNESSES; OATHS
SECTION 1.4 ARIZONA INTESTACY LAW ADOPTED
SECTION 1.5 TESTAMENTARY CAPACITY; WILLS; ATTESTED HOLOGRAPHIC; REVOCATION
SECTION 1.6 APPROVAL OR DISAPPROVAL OF WILL
SECTION 1.7 SUPPLEMENTAL HEARING; NOTICE
SECTION 1.8 CREDITOR'S CLAIMS; AFFIDAVIT; PROPERTIES
SECTION 1.9 PROBATE FEES
SECTION 1.10 DECISIONS; FINDINGS; CITATION OF LAW
SECTION 1.11 NOTICE OF DECISION
SECTION 1.12 DISTRIBUTION
SECTION 1.13 PETITION FOR REHEARING; NOTICE TO SUPERINTENDENT; NOTICE OF NEW HEARING

CHAPTER TWO - SUMMARY DISTRIBUTION
SECTION 2.1 ADOPTION OF SUMMARY DISTRIBUTION PROCEEDINGS VALUE AND NATURE OF ELIGIBLE ESTATES
SECTION 2.2 APPLICATION TO SETTLE ESTATE
SECTION 2.3 APPOINTMENT OF TRUSTEE; BOND
SECTION 2.4 TRUSTEE'S RIGHTS; RIGHTS OF CREDITORS
SECTION 2.5 TRUSTEE'S SALE OF PERSONAL PROPERTY; NOTICE; PROCEEDS
SECTION 2.6 DISTRIBUTION OF ESTATE
SECTION 2.7 TRUSTEE'S ACCOUNTING
SECTION 2.8 EXAMINATION OF ACCOUNTING; DISCHARGE OF TRUSTEE
SECTION 2.9 DISTRIBUTION OF PERSONAL PROPERTY BY AGENCY SUPERINTENDENT

CHAPTER THREE - FELONS SHALL NO INHERIT
SECTION 3.1 PERSON FELONIOUSLY CAUSING DEATH OF ANOTHER PROHIBITED FROM SHARING IN ESTATE OF DECEASED

CHAPTER FOUR - GUARDIAN AND WARD
SECTION 4.1 DEFINITIONS
SECTION 4.2 APPOINTMENT OF GUARDIAN
SECTION 4.3 PETITION; NOTICE; HEARING
SECTION 4.4 TEMPORARY CUSTODY OF MINORS
SECTION 4.5 QUALIFICATIONS OF GUARDIAN
SECTION 4.6 APPOINTMENT OF GUARDIAN - PREFERENCE
SECTION 4.7 BOND OF GUARDIAN
SECTION 4.8 DUTIES OF GUARDIAN
SECTION 4.9 CAUSES FOR REMOVAL OF GUARDIAN
SECTION 4.10 TERMINATION OF GUARDIANSHIP
SECTION 4.11 TESTAMENTARY GUARDIANSHIP
SECTION 4.12 FEES AND COMPENSATION
SECTION 4.13 JURISDICTION




NOTE: Chapters One, Two and Three of the Probate Code are derived from Ordinance 53, WHITE MOUNTAIN APACHE TRIBE PROBATES OF ESTATES, enacted September 4, 1963, as amended by Ordinance 53, enacted September 4, 1963; Ordinance 55, enacted February 26, 1964; and Ordinance 110, enacted October 3, 1978.


CHAPTER ONE

GENERAL PROVISIONS



NOTE: Chapter One is derived from Ordinance 27: PART I. GENERAL PROVISIONS

SECTION 1.1 HEARING; NOTICE; WAIVER OF NOTICE

Hearing to determine heirs or to probate wills of deceased members of the tribe shall be conducted only after notice of time and place of such hearings shall have been posted 20 days in five or more conspicuous places on the reservation. Copies of such notices shall be served personally or by mail, to such probable heirs to, and claimant against, an estate at least 20 days in advance of the date set for the hearing, except that in cases involving no contest, interested parties, if all appear, may waive their right to 20 days notice and testimony may be taken at once.



SECTION 1.2 GUARDIAN AD LITEM REQUIRED

Minors presumed interested in an estate must be represented at the hearing by guardian ad litem appointed by the Tribal Judge.



SECTION 1.3 WITNESSES; OATHS

The Tribal Judge is authorized to administer oaths. All witnesses shall be examined under oath and their testimony reduced to writing and certified as being correct by the person reducing the testimony to writing. The Judge may, in his discretion, limit the number witnesses in any case.



SECTIONS 1.4 ARIZONA INTESTACY LAW ADOPTED

The laws of the State of Arizona shall be the basis for heirship findings in cases of intestacy.



SECTION 1.5 TESTAMENTARY CAPACITY; WILLS: ATTESTED; HOLOGRAPHIC; REVOCATION

An Indian of the age of 21 years or more and of testamentary capacity, who has any right, title, or interest in personal property, may dispose of such property by a will executed in writing and attested by two disinterested adult witnesses; provided, however, that such property may also be disposed of by a holographic will. Where a will has been executed and filed with the Superintendent during the lifetime of the testator, such will shall be held in absolute confidence and its contents shall not be divulged prior to the death of the testator. The testator may, at any time during this lifetime, revoke his will by a subsequent will or other writing executed with the same formalities as are required in the case of the execution of a will, or by physically destroying the will with the intention of revoking it.



SECTION 1.6 APPROVAL OR DISAPPROVAL OF WILL

Wills shall be approved or disapproved only after testimony has been taken as to the testamentary capacity of the decedent at the time the will was signed, and as to the circumstances surrounding its execution. If, in the option of the Judge, the will was coerced from the decedent, or he was unduly influenced or of unsound mind at the time of its execution, the Judge will disapprove it and proceed to probate the estate as in the case of intestacy.



SECTION 1.7 SUPPLEMENTAL HEARING; NOTICE

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 person 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.



SECTION 1.8 CREDITORS' CLAIMS; AFFIDAVIT; PRIORITIES

A. Persons having claims against the estate of the deceased Indians may file same with the Superintendent or the Tribal Judge at any time after the death of the decedent and up to and including the time of the hearing. All claims must be filed in writing and in triplicate. They must be itemized in detail and sworn to before a person authorized to administer oaths. 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 the affiant.

B. All claims that have existed for more than the period prescribed by the Arizona State laws applicable thereto shall not be allowed.

C. Claims of creditors shall be allowed priority in payment in the following order:
(1) Probate fee;
(2) Claims for expenses of last illness and funeral charges;
(3) Claims of indebtedness to the United States or any of its agencies;
(4) Claims of indebtedness due the Tribe of which decedent was a member;
(5) Claims authorized in writing by the Superintendent during the lifetime of the Indian;
(6) Claims of the Federal Government and/or the State of Arizona on account of any social security or old age assistance payment; and
(7) Claims of general creditors.



SECTION 1.9 PROBATE FEES

A. Upon a determination of the heirs to estate property, or upon approval of any will disposing distribution of any estate property or in any event prior to distribution of any estate property is made, a probate fee in the amount of $25.00 shall be due and payable from the estate of the decedent; PROVIDED THAT the Tribal Court may waive such fee in the case of verified indigency in probate cases, as in any other judicial proceedings.

B. This provision shall be in full force and effect as to all probate cases pending on, or filed subsequent to, the date of enactment hereof.



SECTION 1.10 DECISIONS; FINDINGS; CITATION OF LAW

The Judge shall incorporate his findings and conclusions in a decision citing, in cases where decedent died intestate, the Arizona law of descent and distribution, and in decision approving wills he shall state the particular property each devisee or legatee is to receive. Decisions shall state those claims allowed and those disallowed against the estate. A copy of the decision shall be mailed to each heir and claimant and to the Superintendent of the Agency, and to all other interested parties.



SECTION 1.11 NOTICE OF DECISION

Within three days after a decision is made, copies shall be mailed as aforesaid



SECTION 1.12 DISTRIBUTION

Distribution of an estate may be made by the Superintendent after 60 days from the date of the decision, unless a petition for rehearing is filed within that period.



SECTION 1.13 PETITION FOR REHEARING; NOTICE TO SUPERINTENDENT; NOTICE OF THE NEW HEARING

A. Any person who feels aggrieved by the decision of the Tribal Judge may file a written petition for rehearing within 60 days after such decision is rendered, setting forth the grounds therefor. Such a petition shall be addressed to the Judge of the Tribal Court and filed with or mailed to him. The Judge shall immediately notify the Superintendent of the filing of the petition.

B. If the Tribal Judge believes that proper grounds are not shown or that the petition does not appear to show merit, the rehearing will be denied by the Tribal judge, who will then issue his order setting forth the denial of the petition and copies of the Order of Denial shall be furnished to petitioner, the Superintendent and all persons who share in the estate.

C. If the petition does appear to show merit and if proper grounds appear to be shown, the Tribal Judge shall grant a rehearing and the case shall be reconsidered by the Tribal Judge upon a subsequent hearing.

D. Notice of such subsequent hearing shall be given as prescribed in paragraph 1 herein, and shall be given to all parties who appear to have an interest therein or claim to have an interest therein. Immediately upon granting the rehearing the Tribal Judge shall forthwith send to the superintendent a copy of the Order which order shall act as a supersedeas.





CHAPTER TWO

SUMMARY DISTRIBUTION



NOTE: Chapter Two is derived from Ordinance 27: PART II. SUMMARY DISTRIBUTION



SECTION 2.1 ADOPTION OF SUMMARY DISTRIBUTION PROCEEDINGS VALUE AND NATURE OF ELIGIBLE ESTATES

Estates of deceased persons, minors or incompetent persons, where the value of the entire estate does not exceed the sum of Five Hundred Dollars ($500.00) and the property, of said estate consists wholly of personal property, may be settled and distributed without procuring letters of administration or of guardianship under the following rules, to-wit:



SECTION 2.2 APPLICATION TO SETTLE ESTATE

Any person desiring to settle an estate under the provisions of this rule shall make and file with the Clerk of the White Mountain Apache Tribal Court an application stating that the person whose estate is sought to be administrated is dead, a minor or an incompetent, and that the value of the estate within the exterior boundaries of the Fort Apache Indian Reservation does not exceed the sum of Five Hundred Dollars ($500.00), which application shall also contain the names, ages, relationships and addresses of the known heirs and the description and value of the property included in the estate.



SECTION 2.3 APPOINTMENT OF TRUSTEE; BOND

Upon the presentation of such affidavit, the Tribal Judge may, without notice, appoint the affiant or some other qualified person to act as trustee of said estate by a written order and may, in his discretion, require a bond of said trustee.



SECTION 2.4 TRUSTEE'S RIGHTS; RIGHTS OF CREDITORS

Said trustee is entitled to the possession of all of the personal property of said decedent, minor or incompetent only if there is no real property belonging to such person. No formal appraisement thereof shall be required, nor shall notice to creditors be given, provided, however, rights of creditors against said decedent or his estate shall not be affected by this proceeding, and said personal property, whether in the possession of said trustee or other persons, except after sale by said trustee shall be subject to rights of creditors. Said trustee, with the approval of the Tribal Court, may pay from the assets of the estate sums due to a creditor or creditors of said decedent.



SECTION 2.5 TRUSTEE SALES OF PERSONAL PROPERTY; NOTICE; PROCEEDS

Whenever, in the discretion of the trustee it becomes necessary for any reason to sell all or part of the personal property of such estate, said trustee may sell all or any part of said personal property by public sale after at least three (3) days notice of the time and place of said sale by posting by said trustee in three (3) public and conspicuous places within the exterior boundaries of the Fort Apache Indian Reservation. Property sold by said trustee shall no longer be a part of such estate, and shall be deemed to have been replaced by the proceeds of such sale or sales.



SECTION 2.6 DISTRIBUTION OF ESTATES

In cases of estates of decedents, the trustee shall make distribution of the balance of the estate remaining after the payment of expenses and such debts or claims as are paid with the approval of the Tribal Court, in kind or in cash, or partly in kind and cash, to the known heirs of the decedent according to the Laws of Descent and Distribution of the State of Arizona, and present the receipts or receipts of such heirs with his accounting. In case of minors or incompetents, the trustee shall retain the balance of said estate and thereafter apply the same for the benefits of such minors or incompetents in such manner as the Tribal Court may direct.



SECTION 2.7 TRUSTEE'S ACCOUNTING

Within thirty (30) days after the order appointing said trustee, the trustee shall file with the Tribal Court a verified accounting, setting forth all property received and disbursed by him as such trustee, with vouchers for payments, distribution and expenses.



SECTION 2.8 EXAMINATION OF ACCOUNTING; DISCHARGE OF TRUSTEE

Upon the filing of such accounting, the same shall be examined by the Tribal Court, and, if approved by the Tribal Court, said trustee shall be discharged from further liability except where the balance of said estate has been retained in the case of minors or incompetents. In the latter case, said trustee shall return an additional accounting following the expenditure of the balance of the estate as directed by the Tribal Court, together with vouchers therefore, and shall be discharged upon approval of such account by the Tribal Court.



SECTION 2.9 DISTRIBUTION OF PERSONAL PROPERTY BY AGENCY SUPERINTENDENT

The Superintendent of the Fort Apache Agency is hereby authorized to distribute any personal property under his control and belonging to decedent when the value of the property under his control together with all other properties of the said decedent pursuant to the said affidavit does not exceed the value of Five Hundred Dollars ($500.00) and when duly directed by the Tribal Court.





CHAPTER THREE

FELONS SHALL NOT INHERIT



NOTE:Chapter Three is derived from Ordinance 27: Part III. FELONS SHALL NOT INHERIT

SECTION 3.2 PERSON FELONIOUSLY CAUSING DEATH OF ANOTHER PROHIBITED FROM SHARING IN ESTATE OF DECEASED

A. No person who feloniously takes or causes or procures another so to take the life of another shall inherit from such person, or receive any interest whatsoever in the estate of the decedent or any portion of his or her estate.

B. This ordinance shall apply to all estates, the probate of which has not been consummated.





CHAPTER FOUR

GUARDIAN AND WARD



NOTE: Chapter Four is derived from Ordinance 28: GUARDIAN AND WARD

SECTION 4.1 DEFINITIONS

A. Guardian. As used in this chapter, "guardian" means a person appointed to take care of the person and/or property of another.

B. General Guardian. As used in this chapter, "general guardian" means a guardian of the person and/or all property of the ward.

C. Special Guardian. As used in this chapter, "special guardian" means any guardian other than a general guardian.



SECTION 4.2 APPOINTMENT OF GUARDIAN

A. Minors. A guardian may be appointed by the Tribal Court for the person and estate, or either of them, of a minor who has no guardian legally appointed by will or deed, and who is a member of the White Mountain Apache Tribe and resides on the Fort Apache Indian Reservation, and whose parents are incompetent or unfit, or whose parents are deceased and the minor has no competent legal custodian. A petition shall be filed and notice given thereof as provided in Section 4.3 hereof, except that notice shall be given to all of the adult relatives of the minor residing on the Fort Apache Indian Reservation.

B. Incompetents. A guardian may be appointed for an incompetent person when it is determined, as hereinafter provided, that said person is unable, without assistance, properly to manage and take care of his property, and would be likely to be deceived by artful and designing persons if a guardian where not so appointed.



SECTION 4.3 PETITION; NOTICE; HEARING

A. When it is represented to the Tribal Court by verified petition of any relative or friend that any member of the White Mountain Apache Tribe is insane, or from any cause mentally incompetent to manage his property, the White Mountain Apache Tribal Court must cause notice to be given to the supposed insane or incompetent person of the time and place of hearing such petition, not less than five days before the time of such hearing, and such person, if able to attend, must be brought before the Tribal Court.

B. If, after a full hearing and examination upon such petition, it appears to the Court that the person in question is incapable of taking care of himself and managing his property, the Court must appoint a guardian of his person and/or estate with general duties as hereinafter specified.



SECTION 4.4 TEMPORARY CUSTODY OF MINORS

A. When it appears to the court, either from a verified position, or affidavits, that the welfare of the minor will be imperiled if he is permitted to remain in custody of the person then having care of him, the court may make an order providing for temporary custody of the minor until hearing on the petition.

B. When there is reason to believe the minor will be taken from the jurisdiction of the court before which application is made, or will suffer irreparable injury before compliance with the order for temporary custody can be enforced, the court may at the time of making the order for temporary custody to the Special Officer, commanding the officer to take the minor from the custody of the person in whose care he then is and place him in such custody as the court orders.



SECTION 4.5 QUALIFICATIONS OF GUARDIAN

To be appointed a guardian by the White Mountain Apache Tribal Court for a minor member of the Tribe or for a mentally incompetent member, a person must be responsible, a qualified member of the White Mountain Apache Tribe residing on the Fort Apache Indian Reservation, and at least twenty-one years of age.



SECTION 4.6 APPOINTMENT OF GUARDIAN - PREFERENCE

A. Appointment of Guardian Preference:
(1) A parent;
(2) One who was designated by the wishes of the deceased parent;
(3) One who already stands in the position of a trustee of a fund to be applied to the child's support;
(4) To a relative.

B. However, this order of preference is not controlling when its application would not be for the best interest of the child, nor is the preference to be applied where it will result in conflict with such interest.

C. In the case of an incompetent, or a minor, the welfare and best interest of the minor and the incompetent and the care of their property are the primary factors to be considered.



SECTION 4.7 BOND OF GUARDIAN

Every person to whom Letters of Guardianship are directed to issue shall, before receiving them, execute a bond to the White Mountain Apache Tribe, to be approved by the Court. The bond shall be condition that the guardian will faithfully execute the duties of the trust according to this chapter, and shall be in an amount not less than the value of the personal property and the probable value of the annual rents, profits, and issues of the real property of the estate, as estimated by the Court, but the Court may, by its order, impound in Court or retain in its possession any stocks, bonds or other securities belonging to the estate and the value thereof need not be taken into consideration in fixing the amount of the bond.



SECTION 4.8 DUTIES OF GUARDIAN

A. To make an inventory of all property of the estate, real and personal, of his ward and that which comes to his possession or knowledge, and to return the same within such time as the Court may order.

B. To render an account, on oath, of the property of estate of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of same, within three months after his appointment and at least once a year thereafter, and at such other times as the Court directs, and, at the expiration of his trust to settle his account with the Court of the White Mountain Apache Tribe, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all of the property of the estate, moneys and effects remaining in his hands, or due him on such settlement, to the person who is lawfully entitled thereto.

C. To have power over the person and property of the ward, unless otherwise ordered; to be charged with the custody of the ward, and look to his support, health, education and fix the place of residence of the ward at any place on the Fort Apache Indian Reservation, but not elsewhere without permission of the Court. To keep safely the property of his ward and not permit any unnecessary waste or destruction of the property nor to sell, lease or encumber any of such property without the order of the White Mountain Apache Tribal Court, but must, so far as it is in his power, maintain the same, with its buildings, out of the income or other property of the estate, and deliver it to the ward at the close of his guardianship in as good condition as he received it.



SECTION 4.9 CAUSES FOR REMOVAL OF GUARDIAN

Causes for Removal of Guardian:
(a) For abuse of his trust.
(b) For continued failure to perform his duties.
(c) For incapacity to perform his duties.
(d) For gross immorality.
(e) For having an interest adverse to the faithful performance of his duties.
(f) For removal from the state.
(g) In case of a guardian of the property, for insolvency.
(h) When it is no longer proper that the ward should be under guardianship.



SECTION 4.10 TERMINATION OF GUARDIANSHIP

Termination of Guardianship:
(a) When ordered by Court.
(b) By his removal, as provided above.
(c) By marriage of the ward.
(d) By the ward's attaining majority.
(e) By the ward being restored to competency by the Court.



SECTION 4.11 TESTAMENTARY GUARDIANSHIP

A. A guardian of a person or estate or both, of a child, born, or likely to be born, may be appointed by will or by deed to take effect upon the death of the parent appointing.
(1) If the child be legitimate, by the father, with the written consent of the mother, or by either parent if the other be dead or incapable of consent.
(2) If the child be illegitimate, by the mother only.

B. The testamentary guardianship shall be terminated as provided in Section 4.10 hereof.



SECTION 4.12 FEES AND COMPENSATION

A. There shall be a fee of ten dollars ($10.00) charged in all guardianship proceedings.

B. The Court can authorize compensation to be paid to the guardian. In no instance shall it exceed the minimum statutory fees as prescribed by the statutes of the State of Arizona.



SECTION 4.13 JURISDICTION

The White Mountain Apache Tribal Court shall have exclusive jurisdiction over a guardian appointed by this Tribal Court. No person, whether parent or otherwise, has any power as guardian of property, except by appointment as hereinabove provided.


This page is maintained by:
Marilyn K. Nicely, American Indian Law Subject Specialist: nicely@www.law.ou.edu
Date Last Modified: 4 December, 1997
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