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Glossary of Terms Commonly Encountered in Indian Probate


Adult - A person must be 18 years of age to execute a will passing trust or restricted property or to serve as an attesting witness to such a will

Advance Health Care Directive - A document specifying what health actions should be taken in the event a person is no longer able to make decisions due to illness or incapacity (commonly known as a Living Will)

Affidavit to accompany Indian Will - An affidavit, or notarized statement, signed by the testator and attesting witnesses, intended to make the will self-proved

After-born children - Children born to a testator after the execution of a will

Allotment - A parcel of land granted to an Indian by the United States and held in trust for the individual by the Government, or owned in fee by the individual, subject to Federal restrictions. Some allotments; however, were granted in fee simple status

Assignment - The act of transferring to another all or part of one’s property, real or personal, in possession or in action or any estate or right therein

Attesting witness - A person who signs a will with the purpose of proving and identifying the will, and who is qualified to testify about the will

Beneficiary - A person who receives a benefit or advantage from another person’s will; a person named in a will as a recipient of property from the testator

Bequeath - To give a gift of personal property by will

Bequest - A gift of personal property given by will. A bequest is the same thing as a legacy

Class gift - A devise of property to a class or group of individuals, the membership of which will be determined at the time of the testator’s death

Codicil - A supplement or addition to a will

Confidential relationship - A relationship between two or more persons such that one person trusts in and acts upon the advice and representations of the other persons

Contingent remainderman - A person who right to receive the remainder estate is not certain, it is based upon the happening of a future events, such as surviving the life tenant

Decedent - A person who has died

Devise - A gift of real property by will. Also, to give a gift of real property by will

Devisee - A person who receives real property under a will

Disinterested witness - A person who will not gain or lose anything as a result of the execution of a will or codicil

Durable Power of Attorney - A legal document giving a person the power to act and make financial decisions on another person’s behalf in the event of incapacitation or disability

Durable Power of Attorney for Health Care - A legal document giving a person the power to make heath-care decisions for another person

Estate - As used for probate purposes, that property which a person owns at the time of his/her death

Executor - Person named in the will to execute the will and administer the probate estate

Execution of a will - The formal process by which a will is signed and witnessed

Extrinsic evidence - Evidence used in construing a document that is obtained from a source outside the document itself

Federally recognized Indian tribe - A group of Indians that has been acknowledged by the Department of the Interior or United States Congress as having a special relationship with the United States and that is listed in the Federal Register as being an entity recognized and eligible to receive services from the Bureau of Indian Affairs

Fee simple “fee” property - A shorthand expression for “fee simple” property, meaning unconditional ownership. When an individual Indian owns restricted fee property to when the United States hold property in trust for an individual Indian, the individual does not have fee simple title to that property

Forum - A court of quasi-judicial body empowered to determine legal rights

Four unities - When creating a joint tenancy, the “four unities” must be present. All joint tenants must acquire their title by the same deed or will at the same time. Each of the joint tenants’ fractional interest in the property must be the same, and each must have the same rights to possession and use of the property

Fractionation - The continued division of ownership of property into smaller and smaller undivided interest resulting when property descends to multiple heirs or devisees

Gift Deed - A conveyance of land interest by gift which is non-revocable once approved

Guardian - A person to whom the law has entrusted the custody and control of the person and estate, or both, or a minor or incompetent person

Heirs - Properly, a person who receives property under the laws of intestate succession, i.e. who receives property from a person dying without a will. The word is often used to mean a person receiving property either through intestate succession or under a will. See also Presumptive Heir and Pretermitted Heir

Heir-at-law - A person succeeding to property under the laws of intestate succession

Heir-of-the-body - A lineal descendant. The term excludes a surviving spouse, adopted children, and collateral relatives

Holographic will - A will written entirely in the testator’s own handwriting

Indian - A member of a Federally recognized Indian tribe, and, in some cases, a person with Indian blood derived from a Federally recognized Indian tribe, even through not a member of that tribe and without regard to the amount of Indian blood

Indian will - A will passing an interest in Indian trust or restricted property

Individual Indian Money (IIM) account - A cash account maintained by the Bureau of Indian Affairs for an Indian

Inter vivos - During life. An inter vivos conveyance is one made during the lifetime of the person making the conveyance

Interpreter - A person who speaks the language and dialect of a testator, and who enables the testator to communicate with the scrivener in English, so that the testator’s will can be written in English

Intestate - The condition of dying without having made a will. Also, a person who dies without having made a will

Intestacy/Intestate succession - The law by which property of a person dying without having made a will is passed on

Inherit - To take or receive (property, a right, a title, etc.) by succession or will, as an heir

Joint tenancy - An interest in property in which two or more persons derive the same interest, title, and right of possession from the same interest

Joint tenants with right of survivor (JTROS) - A JTROS allows all children to inherit equally then the interest transfers to the surviving children upon the death of a child. The last surviving child takes 100% of the client’s interest in that parcel. See Four Unities.

Lapse - The situation resulting when a devise or bequest is made to an individual who predeceases the testator, or who for some other reason, is not entitled to receive the devise or bequest

Legacy - A gift of personal property by will. A legacy is the same thing as a bequest

Legatee - A person who receives personal property under a will

Lineal descendant - A person who is in direct line of relationship to an individual, such as child, grandchild, and on forever

Life estate - An interest in property limited, usually, by the life of the person or persons having the interest. Infrequently, a life estate is limited by the life of another person

Life tenant - A person holding a life estate in property

Non-Indian - For purposes of Indian probate, a person who is not of Indian blood or whose Indian blood is derived from an Indian tribe that is not Federally recognized

Non-Trust property - Any property that is not trust or restricted property

Per capita - A term used to indicate that a class or group of individuals take a devise or bequest according to the number of individuals, share and share alike

Per stirpes By representation - A term used to indicate that a class or group of individuals take a devise or bequest as the representative of a deceased ancestor

Personal property - In general, all property that is not real property

Presumptive heir - The person or persons who, if an individual dies today, would probably be that individual’s heir

Probate - The legal process by which wills are approved and heirs are determined

Publication - A formal oral declaration made by a testator to the attesting witnesses, when a will is signed, that the document being signed is in fact his/her last will and testament

Personal Representative - Person appointed to oversee the winding up of a decedent’s affairs.

Real property - Land, and generally, whatever is built on, affixed to, or growing in land, but not including annual crops

Remainder - The estate in property taking effect after an earlier interest in the property has expired. Probably the most common remainder interest is that associated with the expiration of a life estate

Remainderman - The person entitled to receive possession of the property when an earlier interest in the property expires. See also Contingent remainderman and Vested remainderman

Residue - That part of a testator’s estate that is left after all debts and bequeaths and devises have been discharged

Residuary clause - A clause in a will, usually the last clause, which names a person or persons to receive any part of a testator’s estate that is left after the rest of the will clauses have been carried out

Restricted status property - Property held by an individual Indian subject to restrictions against alienation or encumbrance excepts with the approval of the Secretary of the Interior

Right of representation - Distribution of property equally to each branch of the descendant’s family where there is a surviving heir in that branch such that the descendants of a deceased heir of that branch will inherit that heir’s share.

Right of Survivorship - Ownership of property by two or more people in which the survivors automatically gain ownership of a decedent’s interest

Scrivener - A person who prepares a will or other document for another person

Self-proved will - In Indian probate, a will executed with additional with additional formalities and accompanies by affidavits from the testator and attesting witnesses concerning due execution of the will

Sound mind - Having testamentary capacity

Specific bequest of devise - A bequest or devise that specifically identifies the property being passed

Surviving spouse - The living husband or wife of a decedent

Testamentary capacity - The amount of mental functioning that is recognized as legally sufficient for a person to make a will

Testamentary scheme - The plan for disposition of property made in a will

Testate - The condition of a person dying and having made a will

Tenant in common - An holder of real property, usually two or more persons with each owning an undivided share and with no right of survivorship.

Testament - The disposal of personal property

Testator/Testatrix - A person who makes a will. Properly, a man is a testator and a woman is a testatrix. It is common, to use the term “testator” to mean both man and a woman

Trust property - Property held by the United States in trust for an individual Indian

Unattested changes - Changes made to a will or codicil after execution that are not signed by the testator and attesting witnesses

Undivided interest - A right to use and possess the whole parcel of land even though an Indian has a fractional interest

Undue influence - Persuasion that deprives the person influence of his/her own free will and causes him/her to act according to the will of another person

Vested remainderman - A person whose right to receive the remainder estate is already fixed and cannot be defeated by anything happening in the future. See also Contingent remainderman and Remainderman

Will - A legal document executed with required formalities and intended to pass the writer’s property upon his/her death

Will execution - The act or process of executing a will

Will provision - A clause in a will providing for a particular matter

Estate Planning - Something we should all do!

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