Red Lake Court of Indian Offenses
Code – “Revisions July 25, 2001”


[Editor's Note: this copy of the Red Lake Band of Chippewa Indians "tribal code" was received from what journalists call a "reliable source" in the tribal administration, apparently July 25, 2001 revisions of the Red Lake Court of Indian Offenses' Law and Order provisions that was adopted by the tribal council on September 11, 1990.  As a Court of Indian Offenses, the Red Lake Court is also subject to the federal regulations, including the law and order provisions in Title 25 of the Code of Federal Regulations.  Maquah.net makes no representation as to the accuracy or current status of this revised code.]


TITLE IX  PROBATE AND COMMITMENT

CHAPTER 900  PROBATE CODE

900.01     General Definitions

900.02     Jurisdiction

900.03     Jury Trials

900.04     Distribution of Estate at Death

900.05     Necessity of Court Order

900.07     Effect of Homicide on Wills, Intestate Succession and Other Property

900.08     Intestate Succession

900.09     Illegitimate Heir

900.10     Heirs to Illegitimate

900.11     Probate of Estate, No Will

900.12     Probate of Estate With a Will

900.13     Hearing Procedure on Filing Petition

900.14     Proof and Findings at Hearing

900.15     Inventory

900.16     Claims or Creditors

900.17     Distribution of the Estate

900.18     Closing the Estate

CHAPTER 901  GUARDIANSHIP OF PERSON AND ESTATE

901.01     Definitions

901.02     Guardianship, Grounds

901.03     Petitioner

901.04     Contents of Petition

901.05     Notice, Hearing, Appointment

901.06     Powers, Duties and Responsibilities of a Guardian

901.07     Filing Inventory

901.08     Filing of Account

901.09     Hearing on an Account

901.10     Adjudication on the Account

901.11     Removal of Guardian

901.12     Mismanagement

901.13     Successor Guardians

901.14     Termination of Guardianship

Examples of Intestate Succession (No Will)

 

 

 

 

TITLE IX
PROBATE AND COMMITMENT

 

CHAPTER 900
PROBATE CODE

 

900.01             General Definitions

 

Subdivision 1. Court.  "Court" means the Red Lake Court of Indian Offenses which shall have jurisdiction over matters relating to the affairs of deceased persons.

 

Subdivision 2. Person.  "Person" means any Indian.

 

Subdivision 3. Estate.  "Estate" includes all the property of a deceased person, real and personal, whose affairs are subject to the jurisdiction of the Court.

 

Subdivision 4. Interstate Succession.  "Interstate Succession" means those circumstances in which the deceased person did not leave a last will.

 

Subdivision 5. Heirs.  "Heirs" means those persons, including the surviving spouse, who are entitled, under the laws of interstate succession in this Chapter, to the property of a deceased person.

 

Subdivision 6. Testator.  "Testator" means a person who makes and signs a will.

 

Subdivision 7. Right of Representation.  "Right of Representation" means that the issue of a deceased person take or inherit the share of an estate which their immediate ancestor would have taken or inherited, if living.

 

Subdivision 8. Issue.  "Issue" means all persons who have descended from a common ancestor.

 

Subdivision 9. Interested Person.  "Interested Person" includes heirs, devisee, children, spouse, creditors, beneficiaries and any other having an interest in the estate of the decedent who may be affected by the proceedings.

 

Subdivision 10.           Devisee.  Devisee" means any person designated in a will to receive a devise.

 

900.02             Jurisdiction

 

Subdivision 1. Chapter 900 shall apply to the affairs and estates of deceased persons who are domiciled on the Red Lake Indian Reservation and to the property of non-resident deceased persons which property is located within the Red Lake Indian Reservation.

 

Subdivision 2. The Court has jurisdiction over all subject matter relating to the estates of deceased persons including the construction of wills and determination of heirs and successors of deceased persons.

 

Subdivision 3. The Court has full power to make Orders, judgments and decrees and take all other action necessary and proper to administer justice in all matters which come before it.

 

900.03             Jury Trials

 

If duly demanded, a party is entitled to a trial by jury in any proceeding in which any controverted question of fact arises.

 

900.04             Distribution of Estate at Death

 

Subdivision 1. Wills.  The power of a person to leave his property by a will and the rights of creditors, distributee and heirs to the property are subject to the restrictions and limitations contained in this Chapter.  Upon the death of a person, his/her real and personal property shall be distributed to the persons whom he named in his last will subject to the conditions and restrictions contained in this Chapter.

 

Subdivision 2. Intestate Succession.  Upon the death of a person, his/her real and personal property shall be distributed to his/her heirs subject to the provisions of this Chapter.

 

900.05             Necessity of Court Order

 

Subdivision 1. Wills.  In order to be effective to transfer any property, a will must be declared to be valid by an Order of the Court together with an Order that the property be distributed accordingly.

 

Subdivision 2. Interstate Succession.  In order to be effective to transfer any property pursuant to the laws of interstate succession, the Court must determine, by Order, the heirs of a deceased person and order that the property be distributed accordingly.

 

900.06             Provisions Governing Wills

 

Subdivision 1. Any person eighteen (18) years or more of age who is of sound mind may make a will.

 

Subdivision 2. Every will shall be in writing and shall conform to the following requirements in order to be valid:

 

a)         It shall be signed and dated by the testator making the will; or

 

b)         It shall be signed by some other person in the name of the testator and in the presence of and at the directions of the testator.

 

All wills shall be signed and witnessed by at least two (2) other persons who have witnessed the testator signing the will.

 

Subdivision 3. Any person who is competent may be a witness to a will and the will is not invalid because it is signed by an interested witness. 

 

Subdivision 4. A will or any part thereof is revoked:

 

a)         by a subsequent will which states it revokes the prior will or any part thereof; or

 

b)         by a subsequent will which is inconsistent with the prior will; or

 

c)         by being burned, torn, cancelled, obliterated or destroyed by the testator with the intent and for the purpose of revoking it.

 

Subdivision 5. If after making a will, a testator is divorced, the divorce decree automatically revokes any provisions of a will providing for disposition of property to the former spouse.  If such provisions are revoked by a divorce, the property shall be distributed as if the former spouse had died prior to the testator.

 

Subdivision 6. The meaning and legal effect of a disposition in a will is controlled by the intent of the testator.

 

900.07             Effect of Homicide on Wills, Intestate Succession and Other Property

 

Subdivision 1. A surviving spouse, heir or devisee of a will who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under the laws of intestate succession and the estate of the decedent passes as if the killer had died before the decedent.

 

Subdivision 2. Any joint tenant or named beneficiary of a bond, life insurance policy or other contractual arrangement who feloniously and intentionally kills another person so that the joint tenancy is severed or bond, life insurance policy or other contractual arrangement would provide a benefit to the killer, is not entitled to any benefit from such joint tenancy, bond, life insurance or other contractual arrangement.  All benefits payable shall be paid as though the killer had died prior to the decedent.

 

Subdivision 3. Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this Section.

 

900.08             Intestate Succession

 

When a person dies intestate, the entire estate, real and personal, shall be distributed in accordance with the following subdivisions of this Chapter 900.08.  Before any distribution occurs, the expenses of administration of the estate, funeral expenses, expenses of last illness and debts of the deceased shall be paid.

 

Subdivision 1. If a spouse survives, who is living with the deceased and not separate from the deceased at time of death, the surviving spouse is entitled to the entire estate.

 

Subdivision 2. If no spouse survives, who  is living with the deceased and not separated from the deceased at time of death, then the estate shall be distributed in equal shares to the surviving children and to the issue of deceased children by right of representation.

 

Subdivision 3. If there be no spouse surviving, who is living with the deceased and not separated from the deceased at time of death, no surviving child, and no surviving issue of a deceased child, then the entire estate shall be distributed to the father and mother of the deceased, in equal shares, but if only one surviving, then the distribution shall be to the survivor.

 

Subdivision 4. If there be no spouse surviving, who is living with the deceased and not separated from the deceased at time of death, no surviving child, no surviving issue of a deceased child and no surviving father or mother, then the entire estate shall be distributed in equal shares to the surviving brothers and sisters, then the entire estate shall be distributed in equal shares to the surviving issue of deceased brothers and sisters if all are of equal degree and by right of representation to those in a more remote degree.

 

Subdivision 5. If there be no spouse surviving, who is living with the deceased and not separated from the deceased at time of death, no surviving issue, no surviving mother or father, no surviving brother or sister, and no surviving issue of any deceased brother or sister, then the entire estate shall escheat to the Red Lake Band of Chippewa Indians.

 

900.09             Illegitimate Heir

 

An illegitimate child shall inherit from his/her mother the same as if born in lawful wedlock, and also from the person who is writing shall have declared himself  to be the father of the child.

 

900.10             Heirs to Illegitimate

 

If any child born to a mother who was not married to the child's father when the child was conceived nor when the child was born, dies without a will and without a spouse or issue who inherit under the law, his/her estate shall be distributed to his/her mother or in case of her prior decease to her heirs other than such child.

 

900.11             Probate of Estate, No Will

 

Subdivision 1. An action to probate an estate with no will of a deceased Indian shall be commenced by filing a petition for probate, on forms supplied by the Court, with the Clerk of Court of the Red Lake Court of Indian Offenses.

 

Subdivision 2. The petition shall be in writing and signed by an interested person.

 

Subdivision 3. The petition for probate shall contain the following information:

 

a)         The name of the deceased, the residence of the deceased at the date of death; the age of the deceased; the date of death of the deceased; the address of the place the deceased died.

 

b)         A short statement showing the interest of the person who executed the petition in the estate of the deceased.

 

c)         The name, age and residence of the person who executed the petition.

 

d)         A description of the real and personal property of the decedent which is located within the boundaries of the Red Lake Indian Reservation.

 

e)         A list of the heirs at law of the deceased together with their mailing addresses.

 

f)          A statement that if the decedent was not a resident of the Red Lake Indian Reservation at the time of his/her death, that there were assets located on the Red Lake Reservation belonging to the deceased at the date of his/her death

 

g)         A statement that the petitioner exercised reasonable diligence to locate a will, but none could be found. 

 

h)         A statement showing the lineage of the deceased for purposes of determining that the deceased is an Indian.

 

I)          A statement that the petitioner requests the Court to enter an Order determining the residence of the decedent at the date of his/her death, the location of assets belonging to the decedent, the heirs at law of the decedent died without leaving a last will and the fact that decedent was an Indian.

 

900.12             Probate of Estate With a Will

 

Subdivision 1. An action to probate an estate, with a will, of a deceased Indian shall be commenced by the filing of a petition for probate, on forms supplied by the Court, with the Clerk of Court of the Red Lake Court of Indian Offenses.

 

Subdivision 2. The petition shall be in writing and signed by an interested person.

 

Subdivision 3. The petition for probate shall contain the following information:

 

a)         The same information as set forth in Chapter 900.11(3) a. - e,  and h.

 

b)         A statement that the original of decedent's last will accompanies the petition.

 

c)         A statement that the petitioner believes, to his best knowledge, that the will is unrevoked and validity executed.

 

d)         The name and addresses of the devisees and legatees named in the will.

 

e)         A statement that the petitioner requests the Court to enter an Order determining the residency of the decedent at the date of his/her death, the location of assets belonging to the decedent, the heirs at law of the decedent, the validity of the will, the interest of the petitioner, and the fact that decedent was an Indian.

 

900.13             Hearing Procedure on Filing Petition

 

Subdivision 1. Upon the filing of a petition for probate, the Court shall determine if the petition meets the requirements of Sections 900.11 or 900.12, as the case may be.  If the petition meets those requirements, the Court shall issue a Notice of Probate, which shall set forth a time and place for hearing on the petition.  If the Court is not satisfied that the requirements of Sections 900.11 or 900.12, as the case may be, have not been satisfied, it shall decline to accept the petition.

 

Subdivision 2. The Notice of Probate shall state the following information:

 

a)         That notice is given to all interested persons that a petition for probate of the estate of the named deceased has been filed with the Court;

 

b)         That a date set forth in the Notice has been set for a hearing on the petition and any objections to the petition will be heard by the Court at that time;

 

c)         That all creditors who have claims against the estate are required to present the same to the Clerk of Court within two (2) months of the date of this Notice or said claims will be barred.

 

Subdivision 3. A copy of the Notice shall be served by the Court upon the person named in the petition as spouse, children, heirs at law, devisees or interested persons in the same manner as in the service of a summons in a civil action.  In addition a copy of the Notice shall be posted in three (3) conspicuous public places on the Red Lake Reservation for two (2) weeks prior to the date set forth in the Notice for the hearing.  The person making the service and doing the posting shall make an affidavit after service and posting is completed describing the manner in which the service and posting was completed.

 

Subdivision 4. The service of the Notice on the persons named in Subdivision 3 hereof must be completed at least ten ( 10) days prior to the hearing date and the posting must be continually kept in place at least two (2) weeks prior to the hearing date.

 

900.14             Proof and Findings at Hearing

 

Subdivision 1. At the hearing set forth in Section 900.13 or any continuance thereof, the Court must determine and find:

 

a)         That the petition for probate is complete;

 

b)         That the petitioner is an interested person;

 

c)         The heirs at law and devisees of the decedent;

 

d)         The residence of the decedent at date of death;

 

e)         The location of the real and personal property of the decedent;

 

f)          The validity, invalidity, or non-existence of any will of decedent;

 

g)         That the decedent was an Indian.

 

Subdivision 2. At the hearing set forth in Section 900.13, the Court shall also consider and determine any objections raised to the petition for probate or for good cause shown may continue to a later date any hearing on objections.

 

Subdivision 3. If the findings required by this Section have been made then the Court shall enter an appropriate order either granting or denying probate of the estate.

 

900.15             Inventory

 

Within thirty (30) days after the Order granting probate is signed, the individual who signed the petition commencing the probate proceedings shall file an inventory with the Clerk of Court.  The inventory shall list all property, owned by the decedent at the time of his death which is subject to the probate court.  The inventory shall further list each item of property individually and shall set forth the fair market value of each item as of the date of death of the decedent.

 

The Court shall mail a copy of the inventory to the surviving spouse, heirs at law of decedent, the devisees and legatees named in the last will of decedent and to other interested persons or creditors who request a copy of the inventory.

 

900.16             Claims or Creditors

 

Subdivision 1. All claims against a decedent's estate by creditors are barred against the estate, heirs and devisees of the decedent unless the claim is filed with the Court within two (2) months after the date of the Notice of probate.

 

Subdivision 2. Claims may be presented by filing with the Clerk of Court a written statement of the claim which describes the nature of the claim, when it was incurred and the amount remaining unpaid.  When any such written claim statement is filed, the Clerk of Court shall send written notice of the claim to the Petitioner, surviving spouse of decedent, heirs of decedent and devisees and legatees of decedent.

 

Subdivision 3. Any of the individuals who received written notice of the claim from the Clerk of court may file with the Clerk of Court a written objection to the claim within the two (2) month period allowed for filing claims.  If no written objections to the claim is filed with the Clerk of Court within the time set forth herein, the claim shall be automatically allowed and it shall be paid from the assets of the estate to the extent possible.

 

Subdivision 4. If a written objection to a claim is filed within the time set forth in this Section, the Clerk of Court shall, as soon as possible, after the two month period for filing claims has expired, set a time, place and date for a hearing on all objections filed against claims which shall be held before the Court without a jury and shall give notice to all interested persons of the hearing.  The Court, after the hearing is concluded, shall determine whether or not the claim is a valid charge against the estate and shall enter its Order accordingly.

 

900.17             Distribution of the Estate

 

Subdivision 1. At anytime after the expiration of the two (2) month period allowed for filing claims has expired and after all claims against the estate have been resolved, the Petitioner shall file with the Clerk of Court a plan for the distribution of  the estate.

 

Subdivision 2. The plan for distribution shall provide the following:

 

a)         A description of the claims against the estate that have been allowed and a statement that the same are entitled to be paid.

 

b)         A description of the costs involved in probating the estate and a statement that the same are entitled to be paid.

 

c)         In an intestate estate, a list of the heirs at law of the estate and the share of the estate that each heir is entitled to pursuant to this Code.

 

d)         In an estate with a will, a list of the devisees and legatees in the will and the share of the estate that each is entitled to pursuant to the terms of the will.

 

Subdivision 3. The following priorities shall be followed in making distributions on behalf of an estate:

 

a)         All claims which have been allowed against the estate shall first be paid in full from estate assets and if the assets are insufficient to pay the same in full payment shall be made on a pro-rata basis.

 

b)         After the allowable claims have been paid in full, the costs of probating the estate shall be paid in full and if the assets are insufficient to make such payment in full, the same shall be paid on a pro-rata basis.

 

c)         After the costs of probating the estate have been paid in full, the heirs at law, devisees or legatees, as the case may be, shall be paid according to the provisions on the law of intestate succession or pursuant to the terms of the will.

 

d)         A devisee in a will is entitled to distribution of the thing devised to him/her but under certain circumstances this may not be attainable if assets are insufficient to pay the items set forth in this Subdivision which have priority.  If the assets of the estate are insufficient to pay or distribute pursuant to the terms of the will, the devisees shall be entitled to a payment or distribution on a pro-rata basis from the remaining assets of the estate.

 

900.18             Closing the Estate

 

Subdivision 1. After the plan for distribution of the estate has been filed, a copy of the plan shall be mailed by the Court to all interested persons.  Any interested person may object to the plan for distribution by filing a written objection with the Court with ten (10) days after receiving a copy of the plan.  The written objection shall specifically state the grounds for the objection.  Objections to the plan shall be heard and determined by the Court.

 

Subdivision 2. In the absence of the filing of any written objections and after the expiration of the ten (10) day period for filing objections, the Court shall determine without a hearing, whether or not the plan proposes to distribute the estate to the persons entitled thereto and if it does the Court shall enter its Order approving the plan and directing the distribution of the estate pursuant to the plan.  The Court Order shall be the authority for the transfer of the assets from the decedent's estate to the persons entitled thereto.

 

Subdivision 3. If the Court shall determine that the plan for distribution does not propose to distribute the estate to the persons entitled thereto, it shall set a time and date for a hearing on the proposed plan and give notice of said time and place to all interested persons.  The Court shall determine at the hearing the persons entitled to the distribution of the decedent's estate and shall issue its Order accordingly.

 

Subdivision 4. The person possessing or having control or direction over the assets of the estate and/or the person who executes and/or files the plan for distribution of the assets of the estate shall be personally liable for the distribution of the assets pursuant to the plan and shall be subject to liability which includes, but is not limited to, wrongful and negligence inappropriation of assets pursuant to the plan of distribution of estate assets.

 

Subdivision 5. Upon filing of receipts with the Court evidencing that the persons entitled to the distributions pursuant to the plan have in fact received their distributions, the estate shall automatically be closed without further Order of the Court and the liability of the person making the distribution pursuant to the provisions herein shall terminate.  Until all receipts have been filed, the estate shall not close and the liability imposed herein shall not terminate.

 

 

 

 

CHAPTER 901
GUARDIANSHIP OF PERSON AND ESTATE

 

901.01             Definitions

 

Subdivision 1. For purpose of Section 901, the following terms shall have the following meanings:

 

a)         "Guardian" means a person who is appointed by the Court to exercise all of the powers and duties designated in Section 901.06 for the care of an incapacitated person or that person's estate of both.

 

b)         "Ward" means an incapacitated person for whom the Court has appointed a guardian.

 

c)         "Court" means the Red Lake Nations Tribal Court.

 

d)         "Incapacitated Persons" means:

 

1.         In the case of guardianship of the Indian person, any Indian person who is impaired to the extent of lacking sufficient understanding or capacity to make responsible personal decisions and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter or safety.

 

2.         In the case of guardianship of the estate and financial affairs of an Indian, any Indian person who:

 

2.1       Voluntarily consents in writing to a guardianship of the estate if the Court is satisfied of the needs therefore; or

 

2.2       Involuntarily upon a determination by the Court that the Indian person is unable to manage his or her property and affairs because the Indian person is impaired to the extent of lacking sufficient understanding or capacity to make responsible decisions concerning his or her property and affairs and the Indian person has property which will be dissipated unless the property management is provided and a guardian is necessary to adequately protect the Indian persons estate or financial affairs.

 

901.02             Guardianship, Grounds

 

Upon petition to the Court, the Court may, if satisfied that there is a need therefore, appoint one or more persons to act as guardian(s) of the person or estate or of both of any incapacitated person.

 

901.03             Petitioner

 

Any Indian may Petition the Court for the appointment of a guardian for any Indian person believed to be incapacitated.

 

901.04             Contents of Petition

 

Subdivision 1. Information.  The Petition shall show the following information:

 

a)         The name and address of the Indian person for whom a guardian is sought.

 

b)         The date of birth and evidence that the Indian person for whom a guardian is sought is an Indian.

 

c)         The names and addresses of living parents, spouse, children, brothers and sisters or in the event that none of these persons are living, the names and addresses of the nearest kindred.

 

d)         The grounds for the guardianship.

 

e)         The approximate value and general nature of the real and personal property of the proposed ward together with the approximate amount of debts of the proposed ward.

 

f)          The name, age, address and occupation of the proposed guardian.

 

Subdivision 2. Detailed Statement.  If requested by the proposed ward or the proposed ward's representative, a written statement shall be furnished to the proposed ward by the Petitioner which shall set forth specific factual information which the Petitioner believes supports the need for appointment of a guardian; such as, mental and physical condition, financial transactions, personal actions or other facts which show the proposed ward's inability to manage his or her estate or inability to provide the necessary food, clothing, shelter or health care.

 

901.05             Notice, Hearing, Appointment

 

Subdivision 1. Notice of Hearing.  Upon the filing of a petition herein, the Court shall fix a time and place for a hearing on the petition.  At least ten (10) days prior to the hearing, the Court shall personally serve the notice of the hearing on the proposed ward.  Notice shall also be served by mail on those interested persons as the Court shall direct.  If the proposed ward is a patient or resident of any hospital or other institution, notice by mail shall also be served on the administrative head of the institution.

 

Subdivision 2. Hearing.  If the proposed ward is within the jurisdiction of the Red Lake Band of Chippewa Indians, then the proposed ward shall be present at the hearing unless the ward waives the right to appear in person or is unable to attend because of a medical condition.  At the hearing, the proposed ward may nominate a proposed guardian.

 

Subdivision 3. Right to Council.  A proposed ward has the right to be represented by a lay advocate at any proceedings under this section.  The Court shall appoint a lay advocate to represent the proposed ward if neither the proposed ward or others provide counsel.

 

Subdivision 4. Findings.  The Court shall make written findings of fact and conclusions of law and direct the entry of an appropriate order.  If the Court finds that the proposed ward is incapacitated as defined in this Section and is in need of the supervision and protection of a guardian it shall enter its order appointing a suitable guardian.  The Court shall also make a finding that the person appointed as guardian is the most suitable and best qualified person among those who are available for appointment as a guardian.

 

Subdivision 5. Issuance of Guardianship Letters.  The appointed guardian shall file with the Court an Acceptance of Trust, and thereafter the Court shall issue letters of guardianship to the appointed guardian which letters shall be evidence of the appointment of the person as guardian.  A copy of the letters shall be mailed to the ward.

 

901.06             Powers, Duties and Responsibilities of a Guardian

 

Subdivision 1. Court Supervision.  A guardian shall be subject to the control and direction of the Court at all times and in all things.

 

Subdivision 2. Powers and Duties of Guardian of the Person.  A guardian of the person shall have the following powers and duties:

 

a)         The power to have custody of the ward and the power to establish the place of abode of the ward.

 

b)         The duty to provide for the ward's health, care, comfort, maintenance, education and needs.  The guardian has no duty to pay for these requirements out of the guardian's personal funds.  Whenever possible, the guardian should meet these requirements through governmental benefits or services to which the ward is entitled, rather than from the ward's estate.

 

c)         The duty to take reasonable care of the ward's clothing, furniture, vehicles and other personal effects.  A guardian may not dispose of the ward's personal effects without first having approval from the Court.

 

d)         The power to give the necessary consents to enable the ward to receive necessary medical care, counseling, treatment or service.   A guardian shall not consent to any medical care of the ward which violates the known religious or moral belief of the ward.

 

Subdivision 3. Powers and Duties of Guardian of the Estate.  A guardian of the estate shall have the following powers and duties:

 

a)         The duty to pay the reasonable charges for the support, maintenance, health and education of the ward in a manner suitable to the wards' station in life and the value of the estate.  The guardian has no duty to pay for these requirements out of the guardian's personal funds.  Whenever possible and appropriate, the guardian should meet these requirements through governmental services and benefits to which the ward is entitled rather than from the ward's estate.

 

b)         The duty to pay the ward's just and lawful debts.

 

c)         The duty to possess and manage the wards estate, collect all debts and claims in favor of the ward, institute suit on behalf of the ward and represent the ward in Court proceedings, invest all funds not currently needed for the debts and charges of the ward and the management of the estate.

 

Subdivision 4. Trust Duty.  The guardian owes to the ward a duty and responsibility of trust.  When controlling, managing and dealing with the estate of a ward, the guardian shall be held to a standard of care which an ordinarily reasonable man would exercise in managing and controlling his/her own estate.

 

901.07             Filing Inventory

 

Within 60 days following appointment of a guardian of the estate of an Indian person, the guardian shall make and file with the Court an inventory of all assets of the ward's estate to which the guardian has knowledge.  The inventory shall contain the fair market value of the assets and shall set forth all encumbrances, liens and other charges against any asset.

 

901.08             Filing of Account

 

Subdivision 1. Annual Account.  Every guardian of the estate shall annually file with the Court an accounting covering the period from the date of appointment or the last accounting.  The Court shall annually review the accounting and shall either approve or reject the same.  The annual account shall be filed with the Court within one year and sixty (60) days from the date of the prior accounting.  If the Court shall reject the accounting or any accounting, notice of the rejection shall be served on the guardian and a hearing on the rejection shall be set at a place and time as determined by the Court.

 

Subdivision 2. Annual Report.  Every guardian of the person shall annually file a report with the Court which shall contain the guardians evaluation on the following information:

 

a)         Changes in the medical condition of the ward.

 

d)         Changes in the living condition of the ward.

 

c)         Changes in the mental condition of the ward.

 

d)         If the ward is institutionalized, then an evaluation of the care and treatment received by the ward

 

Subdivision 3. Court Order.  If the guardian shall fail to file an annual accounting or an annual report as required herein, the Court shall order the guardian to file the appropriate document.

 

Subdivision 4. Final Account.  At the termination of the guardianship or upon the guardian's removal or resignation, the guardian shall file with the Court a final account which shall be approved or rejected by the Court.

 

901.09             Hearing on an Account

 

The Court on its own motion may or upon the petition of the guardian, ward, or any person interested in the ward or the wards estate shall, fix a time and place for the hearing on any account.  Notice of the hearing shall be given to such persons as the Court may direct.

 

901.10             Adjudication on the Account

 

If the account is correct, then the Court shall approve the same.  If the account is incorrect, then it shall be corrected and then approved by the Court.  Upon Court approval of any final account and upon proof of delivery of the property on hand to the persons entitled thereto, the Court shall discharge the guardian.

 

901.11             Removal of Guardian

 

If a guardian becomes unsuitable, incapacitated or disabled or violates the trust or fails to perform any duty imposed by law or imposed by the Lawful Order of the Court, the Court, upon its own motion or upon petition may remove the guardian after Notice and a Hearing.

 

901.12             Mismanagement

 

If after a hearing on Notice, the Court determines that the guardian has mismanaged the estate, or that there is a shortage of funds or other misconduct has occurred for which the guardian is responsible, the Court shall settle the guardian's account and may enter judgment against the guardian as may be appropriate.  Any judgment may be filed and enforced in the same manner as any other judgment.

 

901.13             Successor Guardians

 

If a guardian dies, resigns or is removed, the Court may appoint a successor, after Notice and Hearing.

 

901.14             Termination of Guardianship

 

A guardianship shall terminate upon the death of a ward or upon the wards restoration to capacity.  When there is no need for any further guardianship, the Court may terminate the same upon Notice and Hearing as it may direct.  Termination does not effect a guardians liability for prior acts, nor the obligation to account for funds and assets of the ward.

 

(Chapter 901 Guardianship of Person and Estate added to Tribal Code by Resolution No. 308-92 dated September 15, 1992)

 

 

Examples of Intestate Succession (No Will)

 

Example pursuant to 900.08(1)

 

1.         Spouse survives, who is living with the deceased and not separated from the deceased at time of death, no children, no grandchildren:

 

a)         Result:  Estate goes to spouse.

 

Example pursuant to 900.08(2)

 

2.         Spouse survives, who is living with the deceased and not separated from the deceased at time of death, and children surviving

a)         Result:  Spouse receives entire estate.

 

Example pursuant to 900.08(3)

8.         No surviving spouse, 3 children are surviving

a)         Result:  Each child gets 1/3.

 

9.         No surviving spouse, there were 4 children, but only 2 are surviving, the other 2 were deceased, each of the 2 deceased children left 2 children surviving (4 grandchildren)

a)         Result:  Surviving children each get 1/4; 4 grandchildren each get 1/8.

 

Example pursuant to 900.08(4)

10.       No surviving spouse; no surviving children; no surviving grandchildren; only survivor is mother of deceased.

a)         Result:  100% to mother.

 

Example pursuant to 900.08(5)

11.       No surviving spouse; no children; no grandchildren; no surviving father or mother, but there were 8 brothers and sisters.  5 brothers and sisters surviving; 3 brothers and sisters deceased, but each deceased brother and sister left 3 surviving children (9 nieces and nephews)

a)         Result:  Surviving bothers/sisters each get 12.5%

                        Surviving nieces/nephews get 4.166%



< Home >
< Next >
< Next >