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Navajo Rules of Probate Procedure |
I. SCOPE OF RULES AND DEFINITIONS
RULE 1. Scope of Rules.
The petition for probate of a will or for the administration of an estate in which there is no will shall contain the following information:
(a) The date and place of death of the decedent and his age at the time of death;
(b) The name and census number of the decedent and all other names used by him;
(c) A statement that the decedent was an Indian stating the place of his last residence and that he had unrestricted property within the territorial jurisdiction of the court;
(d) Detailed statement of the assets of the estate (including items distributed according to customs, and to whom) with the approximate value of each;
(e) The names of all heirs (including the widow or widower) with their census numbers, ages, relationship to the decedent and addresses; if any heirs are unknown, the petition shall so state;
(f) A statement that the decedent left no will or that the will is filed with the petition and offered for probate;
(g) The name, census number, age, residence, and relationship to the decedent of the executor or the person applying for appointment as administrator; and
(h) Action must be brought within six years of the death (Title 7 N.T.C. § 302).
RULE 2. Form of Probate Pleading.
Every paper presented for filing in every probate case shall give the following information at the top of the first page:
(a) Title of the court;
(b) The name and census number of the decedent;
(c) The name and mailing address of the administrator or executor and of the advocate for the estate; and
(d) The case number given by the clerk.
Each petition for administration and each other petition or report in the estate shall have the following statement at the bottom signed by the administrator or the petitioner.
“I have read the above statement or it has been read to me and I understand it and it is true, this ______ day of _________________, 19___.”
Each pleading shall be signed by the advocate if the party has an advocate.
RULE 3. Who May be Administrator or Executor.
Every executor and administrator must be over the age of 21 years and a resident within the territorial jurisdiction of the Tribe. The first rights to appointment as administrator shall be in the following order:
(1) To the surviving husband or wife or some competent person whom he or she may request to have appointed.
(2) To the children.
(3) To other relatives entitled to share in the distribution of the estate.
(4) To any creditor.
RULE 4 Duties of Administrators and Executors.
Every administrator or executor appointed by the court is an officer o the court and subject to the directions and orders of the court. The failure of the administrator or executor to obey the orders of the ct about the estate is contempt of court and the administrator is subject to punishment.
The administrator or executor of an estate is a trustee for the benefit of the heirs and creditors of the estate. He has no right to use any of the property or money of the estate as his own even if he is one of the heirs. Within 30 days after the administrator is appointed he must file with the court an inventory of all of the property of the estate. The administrator must file a final report within 30 days.
If for some reason, it is impossible for the administrator to file the final report within 30 days, as provided in these rules the administrator, within the 30-day period, must ask the court for an extension of time to file the inventory or report stating why additional time is necessary.
The administrator or executor is a trustee and is personally liable for everything he does in handling the estate and he can be made to repay the estate out of his own pocket for any loss to the estate due to his carelessness or failure to account.
If the court requires the administrator to have a bond, the person signing the bond is also responsible and can be forced to repay the estate for any loss because of the administrator’s carelessness or failure to make a proper accounting to the court.
RULE 5. Community Property.
All goods, money, livestock, grazing permits and other real and personal property acquired by the husband and wife during their marriage are community property. On the death of a husband or wife, one-half of the community property goes to the survivor. This one-half is not a part of the probate case, and cannot be willed away by the decedent.
RULE 6. Persons Entitled to Distribution of the Estate in the Absence of a Will.
After setting aside the share of community property owned by the widow or widower and after the payment of all expenses of administration, funeral expenses and debts of the deceased, the remaining assets of the estate shall go to the following persons when there is no will:
(1) If the decedent was a medicine man, all of his official paraphernalia shall be given to such medicine man as the family may select.
(2) Each of the father, mother, brothers and sisters of the decedent shall receive one item of the personal effects of the decedent as the family may select.
(3) If the decedent is survived by a husband or wife and by issue (issue means, children, grandchildren and great-grandchildren, etc.), then the following distribution is made:
(a) In Arizona, if all of the issues of the decedents are also issues of the surviving husband or wife, then the husband or wife gets everything.
(b) In Arizona, if one or more issues of the decedent is not also the issue of the surviving husband or wife, then the husband or wife gets one-half of the decedents non-community (called separate) property, and none of the decedent’s half of the community property, and the issues divide the rest.
(c) In New Mexico, in all cases, the husband or wife gets the decedent’s half of the community property, and one-quarter of the separate property, and the issues divide the other three-quarters of the separate property.
(4) If there is no surviving wife or husband, all of the remaining property shall be divided among the issue.
(5) If there is a surviving wife or husband and no issue, such wife or husband shall receive all of the remaining property.
(6) If there is no surviving wife or husband and no issue, and there is a mother or father living, the mother or father shall receive all of the remaining property. If there are both father and mother, the remaining property shall be divided equally between them.
(7) If there is no surviving wife or husband, no issue and any father or motion, the remaining property shall be divided in equal shares among the brothers and sisters of the decedent, or their issues if none of them survive.
(8) If there is no surviving wife, husband, issue, father, mother, brothers, sisters, or issue of brothers and sisters, then the property goes to the grandparents of the decedent, or to the issue of the grandparents if the grandparents do not survive.
(9) If none of the above relatives of the decedent survive, then the estate goes to the closest relatives of the husband or wife following the same procedure.
Example: A man dies, you check for relatives in this order:
(1) Wife (2) Children (3) Grandchildren (4) Great-grandchildren (5) Father and mother (6) Brothers and sisters (7) Nephews and nieces (children of the brothers and sisters) and their issue (8) Grandparents (9) Aunts and uncles (children of the grandparents) (10) First cousins and their issue (11) The issue of the wife (12) The wife’s parents (13) The wife’s brothers and sisters (14) The children of the wife’s brothers and sisters and their issue (15) The wife’s grandparents (16) The children of the wife’s grandparents (17) The wife’s first cousins and their issue.
(10) If there is shown to be a Navajo custom concerning the distribution of the property, the property will descend according to that custom, even if the custom is in conflict with any other provision of this rule.
RULE 7. Settlement of Estates.
Within 30 days after his appointment, the administrator shall file a final report showing the following:
(a) The names and addresses of the heirs (with all proper additions or corrections from the original petition).
(b) A list of all of the assets of the decedent (with all proper additions or corrections from the original petition).
(c) A statement that all debts, funeral expenses and other expenses of administration and last sickness have been paid, or explaining what arrangements have been made to pay them. The report must show that satisfactory arrangements have been made. (d) The way the administrator proposes to divide the assets among the heirs.
The administrator shall attach to the report written consents to the distribution by all heirs as far as it is possible to obtain them.
At the time the report is filed, the administrator shall present a form of order to the judge for signature. The order shall set a date for hearing and direct that notice shall be given. The order shall be in the form attached hereto.
Notice of hearing shall be published in the Navajo Times for two weekly issues and copies of the notice together with a copy of the final report shall be mailed to each of the heirs at his or her last known address. Proof of publication and of mailing shall be made by the affidavit of any person who knows the facts of such publication or mailing. The notice and the affidavit shall be in the forms attached hereto.
The hearing shall not be set sooner than 30 days after the date of first publication of the notice of final hearing.
The cost of publishing the notice of final hearing shall be considered one of the administration expenses of the estate and be paid out of the assets of the estate.
The administrator and his advocate shall appear in court at the time and place set for the final hearing. At the final hearing the court shall hear all parties and make a decision as to a fair distribution of the assets of the estate.
Any heir or other interested party may file an answer to the final report at any time prior to the date set for final hearing. In such case the court shall set the matter for trial as provided for other contested civil cases.
If no one appears to oppose the final report the court may sign an order approving the final report without hearing.
RULE 8. Small Estates.
In the event that the total value of the assets of the estate is less than $500 and the heirs of the decedent are his widow, widower or minor children, the estate may be settled as provided in Rule 7 except that it will not be necessary to publish notice in the Navajo Times.
All notices to minor children shall be addressed to them in care of their parents, guardian or custodian.
RULE 9. Probate and Wills.
If there is a written will and it is not contested, it may be admitted to probate on the testimony of one subscribing witness. If it appears to the satisfaction of the court that it is difficult for the subscribing witness to attend, proof of the will may be made by the affidavit of a subscribing witness.
In the event of a will contest, the case shall be tried according to the rules of evidence and the procedures relating to civil cases in the Courts of the Navajo Nation. No jury will be allowed.
RULE 10. Final Settlement Order--Effect.
The order or decree of the court allowing the final report of the administrator or executor as provided in Rule 7 of these rules shall be considered final and binding on all claimants against the estate.
At any time within one year from the date the final order or decree is entered, may heir o other person interested in an estate may file a motion to set aside the final order or decree and to permit the person so petitioning to file objections to the final report and have his objections or claims heard by the Trial Court. The motion must b[e] supported by a statement singed and provided by the petitioner, that the petitioner had no notice of the final settlement of the estate or that his failure to appear at the final hearing was due to [excusable] neglect or mistake and the he has a valid interest in the estate and good grounds for his objections.
RULE 11. Appeals.
An appeal may be taken from the final order or decree within 30 days as provided in the Rules of Appellate Procedure.
RULE 12. Computation Time.
In computing any period of time allowed by these rules, by order of the court, or by any applicable law, the day of the act, event or default is not to be included. The last day of the period so computed is to be include, unless it is a Saturday, Sunday or court holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor court holiday.
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