[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.
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.
A.
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.
B.
The NHBP Tribal Court may accept the jurisdiction of a tribal member's
estate which was originally filed in another court as follows:
(1)
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.
(2)
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.
(3)
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.
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.
B.
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.
A record of all hearings under this chapter will be made and preserved
by the Court.
B.
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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
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.
A.
Any person nominated in the last will and testament of the deceased.
B.
The surviving spouse.
C.
Children in descending order of age.
D.
Other blood relatives in the order of their closeness of relationship.
E.
Any other adult tribal member who is a creditor of the deceased.
F.
Any other adult tribal member.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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:
(1)
The expenses of administration;
(2)
Funeral expenses, including the reasonable cost of a burial
lot and a reasonable sum for the marker on the grave;
(3)
The expenses of last illness;
(4)
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;
(5)
Debts having preference by the laws of the United States;
(6)
All other claims.
B.
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.
C.
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.
A.
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.
B.
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.
