[HISTORY: Adopted by the Tribal Council of the Nottawaseppi Huron Band of the Potawatomi 8-16-2018 by Res. No. 08-16-18-13. Amendments noted where applicable.]
This chapter shall be the Nottawaseppi Huron Band of the Potawatomi's (NHBP, Tribe, or Band) Probate Code. It may be referred to throughout this chapter as the "Probate Code" or simply "this chapter."
The Tribal Council of the Nottawaseppi Huron Band of the Potawatomi enacts this chapter in order to recognize the Tribal Court's authority and jurisdiction over the estate of tribal members who have walked on and to provide a comprehensive framework to facilitate the distribution of the member's estate. This chapter shall apply to all petitions pending or filed after the date of adoption. The Tribal Council adopts this chapter pursuant to the express grant of authority enumerated in Article VI of the Constitution.
If any provision of this chapter is found to be unconstitutional or unlawful by a court of competent jurisdiction, such provision(s) shall be struck, and the remainder of this chapter shall remain in full force and effect.
- A person appointed by a court to manage a protected individual's estate.
- Includes the property of the decedent, trust, or other person whose affairs are subject to this code as the property is originally constituted and as it exists throughout administration. Estate also includes the rights described in MCL 700.3805, MCL 700.3922, and MCL 700.7606 to collect from others amounts necessary to pay claims, allowances, and taxes.
- A person nominated in a will by the testator to gather up the estate, protect the interests of the estate, pay all debts enforceable against the deceased and, after payment of any tax due and of the costs of the administration, to distribute the estate according to the terms of the will, or otherwise according to law.
- INTERESTED PERSON or PERSON INTERESTED IN AN ESTATE
- Includes, but is not limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person. Identification of interested persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, a proceeding, and by the rules of procedure for the Tribal Court, not in conflict with this code. In the absence of Tribal Court promulgated rules of procedure, the Michigan Court Rules will be utilized as a guide.
- Includes, but is not limited to, a codicil and a testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to the decedent's property that is passing by intestate succession.
The NHBP Tribal Court shall have the authority to appoint executors and administrators, determine heirs, determine the validity of wills, and to probate and distribute the estates and wills of any member of the Tribe with respect to property located on the reservation which is outside the jurisdiction of the Bureau of Indian Affairs. The Tribal Court shall also exercise such functions over restricted or trust lands in the jurisdiction of the Bureau of Indian Affairs to the greatest extent allowed by law.
The NHBP Tribal Court may accept the jurisdiction of a tribal member's estate which was originally filed in another court as follows:
A motion for transfer of jurisdiction to NHBP Tribal Court will be filed in the court of original jurisdiction by an interested party. The interested party seeking the transfer will concurrently provide the NHBP Tribal Court with notice of the filing of the transfer motion.
The Court has sole discretion to accept or deny transfers of jurisdiction from state courts. The Court may accept transfer of jurisdiction without a hearing when exigent circumstances are presented in an ex parte motion and indicate that the best interests of the estate and NHBP will be clearly served best by immediate transfer of jurisdiction. Subsequent to a hearing in state court on a valid motion to transfer jurisdiction resulting in a ruling in favor of transfer, the Court must make a determination regarding acceptance or denial of jurisdiction within seven (7) calendar days and notify the state court in writing of its determination.
Upon the hearing for transfer of jurisdiction from state court the Tribal Court will enter an order of acceptance, wherein the case will be entered into the Tribal Court system or an order of denial, wherein the case will be rejected and returned to the referring court. When an order of acceptance is entered the Court will schedule further proceedings in accordance with procedures and timelines required under this code within fifteen (15) calendar days after entry of the order.
It is recognized by this chapter that the Department of the Interior is obligated by current federal law to distribute trust real estate pursuant to the laws of descent and distribution of the State of Michigan. So that consistency can be maintained for the benefit of the Tribe, the Tribal Court will admit for probate any will which is valid as a last will and testament under 25 USC § 2206 for trust real estate upon the Nottawaseppi Huron Band of the Reservation, or which would be valid under the laws of the State of Michigan. For decedent's estates where no will is admitted to probate, the Tribal Court shall apply the rules of descent and distribution then in effect for the State of Michigan and as applied by the Department of the Interior for trust real estate.
A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the jurisdiction where a death purportedly occurred is prima facia evidence of the fact, place, date and time of death and the identity of the decedent.
A person who is absent for a continuous period of seven years during which time he has not been heard from and whose absence cannot be satisfactorily explained after diligent search and inquiry into his whereabouts is presumed to be dead. His death is presumed to have occurred at the end of the seven-year period unless there is sufficient evidence for determining that death occurred at some other time.
A record of all hearings under this chapter will be made and preserved by the Court.
The general public will be excluded from the proceedings and only interested parties, Court personnel directly involved in the handling of the case, and other persons determined to be material to the proceedings by the Court will be admitted. Witnesses may be excluded from the courtroom during the taking of evidence from other witnesses upon direction of the Court and oral motion by any of the parties. Parties may be removed from the courtroom if the Court deems it necessary to maintain order in the proceedings. The proceedings will continue in the absence of that party.
All Court records will be confidential and will not be open to inspection to anyone except:
Except as otherwise provided in this chapter, every document filed with the Court pursuant to this chapter shall be deemed to include an oath to the effect that the representations are true to the best knowledge, information and belief of the person submitting the document. Deliberate falsifications of such documents are perjury under 8 NHBPTC § 6-39.
Whenever notice of a hearing on any petition or other probate document or other matter is required and except for specific notice requirements otherwise provided, proper notice of the time and place of any hearing is to be given to any interested person or his attorney according to the Tribal Court's Rules of Civil Procedure governing service of process.
Any person who is an heir; devisee, legatee, or beneficiary under a testamentary instrument or under the laws of intestate succession may renounce in whole or in part his inheritance or interest by filing with the Court a written instrument verified under oath at any time prior to the entry of a decree of distribution. Upon such proper renouncement, the interest renounced passes as if the person renouncing it predeceased the decedent.
Any person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless by virtue of a subsequent remarriage he is married to the decedent at the time of death. A decree of separation which does not terminate the marital status of husband and wife shall not be considered a divorce for inheritance purposes.
Any surviving spouse, heir, devisee, surviving joint tenant, beneficiary of a bond, life insurance policy, or other testamentary device who criminally and intentionally kills the decedent is not entitled to any benefit under a will or under this probate code or any other law of the Tribe regarding the decedent's estate, and the estate of such decedent will pass as if the killer had predeceased the decedent.
A final judgment of conviction of an offense containing the elements of criminal or intentional killing is conclusive for the purpose of this section. In the absence of a conviction, the Court may determine by a preponderance of the evidence whether the killing was criminal and intentional for purposes of this section.
Whenever any member of the Tribe dies with or without a will, leaving property on the Reservation which is subject to the jurisdiction of the Tribal Court, any person claiming to be an heir of the decedent or a creditor of the decedent may petition the Court for appointment of an administrator or executor of the decedent's estate and for admission to probate of any instrument purporting to be the last will and testament of the decedent and for distribution of the property. The petition shall state the names and last known addresses of all persons known to the petitioner who may be heirs, devisees, or legatees of the decedent; shall request that a hearing date be fixed on the question of appointment of an administrator or executor of the estate; shall request that notice to creditors be given; shall establish the interest of the petitioner in the estate; shall submit with the petition the purported instrument alleged to be the last will and testament of the deceased, and shall request that notice of hearing be given.
Upon receipt of such petition, the Court shall fix a time and place for hearing and shall order that all persons named in the petition be given notice as provided by this chapter.
The following persons, legally competent, shall be afforded priority in order of their listing for appointment as administrator or executor.
Any person nominated in the last will and testament of the deceased.
The surviving spouse.
Children in descending order of age.
Other blood relatives in the order of their closeness of relationship.
Any other adult tribal member who is a creditor of the deceased.
Any other adult tribal member.
The duties of the administrator or executor shall be to take possession of all property of the deceased subject to this chapter and within one month after his appointment make an inventory and appraisal of such property and file the original with the Court and mail copies thereof to all persons named in the petition.
Such administrator or executor shall within 60 days investigate and attempt to determine and file with the Court a report listing all of the known relatives of the decedent and heirs and devisees who, in the opinion of the executor or administrator, are entitled to distribution of the decedent's estate.
The executor or administrator shall give notice to creditors as provided elsewhere in this chapter, and upon completion of the notice to creditors, shall report to the Court on the amount and nature of each creditor's claim and recommend to the Court with reference to each claim whether or not the same should be allowed and paid.
The executor or administrator shall prosecute and defend all actions by and against the estate and shall have the authority to institute actions for the purpose of recovering assets of the decedent's estate. In addition, the executor or administrator shall submit accountings to the Court in accordance with this chapter, and upon the completion of his duties, shall distribute the estate in accordance with any order of the Court.
The administrator or executor shall file a bond in an amount set by the Court to insure his faithful and honest performance of his duties as administrator with such sureties as the Court may require. Said bond may be waived by the Court with the consent of the persons entitled to distribution of the decedent's estate or if waived by the decedent's will.
Upon his appointment as administrator or executor, the person appointed shall take an oath subscribed in open Court to the effect that he will faithfully and honestly perform the duties of the administrator or executor. Upon the taking of such oath and filing of the bond, if any, the administrator or executor shall be granted letters of administration or letters testamentary as proof of his appointment.
The administrator or executor of the estate shall cause notice to creditors to be posted in at least three conspicuous places on the Reservation at the places designated by the Tribal Court. Said notice shall state that an administrator or executor has been appointed for the estate of the decedent and that any person claiming to be a creditor of the decedent shall have 90 days from the date of the first posting of said notice to present their claim to the Clerk of the Tribal Court and that only those claims which are timely presented shall be paid by the estate. Notice by mailing as otherwise provided by this chapter shall also be given to any creditor actually known to be such by the administrator or executor. No creditor who holds a security interest in any asset of the decedent's estate shall be required to file a claim in order to be paid.
Where any lien for any demand or claim exists by virtue of a mortgage, pledge, attachment, judgment or execution levy, such lien shall have preference according to its priority to the extent of such demand on any specific property upon which such lien shall have attached, Otherwise, all demands against the estate of any deceased person must be paid in the following order:
The expenses of administration;
Funeral expenses, including the reasonable cost of a burial lot and a reasonable sum for the marker on the grave;
The expenses of last illness;
Any debt that may be due by the decedent personally to servants and employees for services rendered within 60 days preceding the decedent's death;
Debts having preference by the laws of the United States;
All other claims.
If the estate is insufficient to pay all of the debts of any one class, each creditor must be paid pro rata in proportion to his claim, and no creditor of any class shall receive any payment until all of those of the preceding class are paid in full.
If the executor or administrator disputes the amount or validity of any claim filed against the estate, he shall report the same to the Court who shall fix a time and place for a hearing on the validity of such claim, and notice as provided by this chapter shall be given to the creditor or claimant. At the time and place fixed for such hearing, the Court shall determine the extent and validity of the claim and shall enter an appropriate Order, either allowing or discarding said claim.
After the time for filing claims has expired and the administrator or executor has resolved all of the pending claims and after the administrator or executor has marshaled all of the assets of the estate and has performed such other duties as may have been required of him by this chapter or by any order of the Court, and in any event, within one year after his appointment and annually thereafter, such administrator or executor shall render an accounting to the Court for its approval of all receipts and disbursements from the estate showing the present status of the estate and whether or not the same is ready for distribution and also showing the computation of any attorneys' or administrator's or executor's fees involved for which approval for payment is requested. True copies of the accounting shall be sent to all interested persons named in the petition or otherwise by order of the Court. If any interested person requests a hearing on the accounting, the Court shall fix a time and place for a hearing, and the administrator shall cause notice to be given as required by this chapter. If the accounting is for a final accounting and the administrator or executor claims that the estate is available for distribution, such notice and hearing shall be given automatically. In the event the accounting is approved, the Court shall thereupon enter a decree of distribution directing the executor or administrator to distribute the property to the persons entitled thereto, spelling out in the decree the details of such distribution. Upon completion of the distribution and compliance with the decree, the executor or administrator shall present evidence to the Court of the completion of his duties and shall thereupon be discharged by order of the Court and his bond released.
If there is no person available to take all or any portion of the decedent's estate, then the property shall pass to the Tribe.
No person is disqualified to take as an heir because he or any person through whom he claims is not a member of the Tribe or because he does not live on the Reservation.
No debt owed to decedent is charged against the share of any person except the debtor.
An administrator or executor may upon approval of the Court receive a fee of not more than 3% of the value of the gross estate or the sum of $100 whichever is greater, to be paid from the estate prior to the final distribution, which fees are only paid once.
An attorney who represents the administrator or executor of an estate for such purpose may, with the approval of the Court, be paid the same fee as the administrator or executor.
Any estate may be reopened whenever necessary to dispose of the decedent's property discovered after the estate has been closed or to make other necessary corrections.
In any question arising under the provisions of this probate code, the Tribal Court shall apply the general principles of probate as enunciated in the statutory rules of the State of Michigan except where such rules conflict with the specific enactments of this chapter, other enactments of the Tribal Code, or superseding federal law.