25 USC 2206 - Descent and distribution

U.S Code last checked for updates: Nov 25, 2024

§ 2206.

Descent and distribution

(a)

Nontestamentary disposition

(1)

Rules of descent

Subject to any applicable Federal law relating to the devise or descent of trust or restricted property, any trust or restricted interest in land or interest in trust personalty that is not disposed of by a valid will—

(A)

shall descend according to an applicable tribal probate code approved in accordance with section 2205 of this title; or

(B)

in the case of a trust or restricted interest in land or interest in trust personalty to which a tribal probate code does not apply, shall descend in accordance with—

(i)

paragraphs (2) through (5); and

(ii)

other applicable Federal law.

(2)

 So in original. Another par. (2) follows par. (5).

Rules governing descent of estate

(A)

Surviving spouse

If there is a surviving spouse of the decedent, such spouse shall receive trust and restricted land and trust personalty in the estate as follows:

(i)

If the decedent is survived by 1 or more eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive ⅓ of the trust personalty of the decedent and a life estate without regard to waste in the interests in trust or restricted lands of the decedent.

(ii)

If there are no eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive all of the trust personalty of the decedent and a life estate without regard to waste in the trust or restricted lands of the decedent.

(iii)

The remainder shall pass as set forth in subparagraph (B).

(iv)

Trust personalty passing to a surviving spouse under the provisions of this subparagraph shall be maintained by the Secretary in an account as trust personalty, but only if such spouse is Indian.

(B)

Individual and tribal heirs

Where there is no surviving spouse of the decedent, or there is a remainder interest pursuant to subparagraph (A), the trust or restricted estate or such remainder shall, subject to subparagraphs (A) and (D), pass as follows:

(i)

To those of the decedent’s children who are eligible heirs (or if 1 or more of such children do not survive the decedent, the children of any such deceased child who are eligible heirs, by right of representation, but only if such children of the deceased child survive the decedent) in equal shares.

(ii)

If the property does not pass under clause (i), to those of the decedent’s surviving great-grandchildren who are eligible heirs, in equal shares.

(iii)

If the property does not pass under clause (i) or (ii), to the decedent’s surviving parent who is an eligible heir, and if both parents survive the decedent and are both eligible heirs, to both parents in equal shares.

(iv)

If the property does not pass under clause (i), (ii), or (iii), to those of the decedent’s surviving siblings who are eligible heirs, in equal shares.

(v)

If the property does not pass under clause (i), (ii), (iii), or (iv), to the Indian tribe with jurisdiction over the interests in trust or restricted lands;

except that notwithstanding clause (v), an Indian co-owner (including the Indian tribe referred to in clause (v)) of a parcel of trust or restricted land may acquire an interest that would otherwise descend under that clause by paying into the estate of the decedent, before the close of the probate of the estate, the fair market value of the interest in the land; if more than 1 Indian co-owner offers to pay for such interest, the highest bidder shall acquire the interest.

(C)

No Indian tribe

(i)

In general

(ii)

Contiguous parcel

(D)

Intestate descent of small fractional interests in land

(i)

General rule

(ii)

Surviving spouse

(iii)

Single heir rule

Where there is no life estate created under clause (ii) or there is a remainder interest under that clause, the trust or restricted interest or remainder interest that is subject to this subparagraph shall descend, in trust or restricted status, to—

(I)

the decedent’s surviving child, but only if such child is an eligible heir; and if 2 or more surviving children are eligible heirs, then to the oldest of such children;

(II)

if the interest does not pass under subclause (I), the decedent’s surviving grandchild, but only if such grandchild is an eligible heir; and if 2 or more surviving grandchildren are eligible heirs, then to the oldest of such grandchildren;

(III)

if the interest does not pass under subclause (I) or (II), the decedent’s surviving great grandchild, but only if such great grandchild is an eligible heir; and if 2 or more surviving great grandchildren are eligible heirs, then to the oldest of such great grandchildren;

(IV)

if the interest does not pass under subclause (I), (II), or (III), the Indian tribe with jurisdiction over the interest; or

(V)

if the interest does not pass under subclause (I), (II), or (III), and there is no such Indian tribe to inherit the property under subclause (IV), the interest shall be divided equally among co-owners of trust or restricted interests in the parcel; and if there are no such co-owners, then to the United States, to be sold, and the proceeds from sale used, in the same manner provided in subparagraph (C).

The determination of which person is the oldest eligible heir for inheritance purposes under this clause shall be made by the Secretary in the decedent’s probate proceeding and shall be consistent with the provisions of this chapter.

(iv)

Exceptions

Notwithstanding clause (iii)—

(I)

(aa)

the heir of an interest under this subparagraph, unless the heir is a minor or incompetent person, may agree in writing entered into the record of the decedent’s probate proceeding to renounce such interest, in trust or restricted status, in favor of—

(AA)

any other eligible heir or Indian person related to the heir by blood, but in any case never in favor of more than 1 such heir or person;

(BB)

not more than 1 co-owner of another trust or restricted interest in such parcel of land; or

(CC)

the Indian tribe with jurisdiction over the interest, if any; and

(bb)

the Secretary shall give effect to such agreement in the distribution of the interest in the probate proceeding; and

(II)

the governing body of the Indian tribe with jurisdiction over an interest in trust or restricted land that is subject to the provisions of this subparagraph may adopt a rule of intestate descent applicable to such interest that differs from the order of descent set forth in clause (iii). The Secretary shall apply such rule to the interest in distributing the decedent’s estate, but only if—

(aa)

a copy of the tribal rule is delivered to the official designated by the Secretary to receive copies of tribal rules for the purposes of this clause;

(bb)

the tribal rule provides for the intestate inheritance of such interest by no more than 1 heir, so that the interest does not further fractionate;

(cc)

the tribal rule does not apply to any interest disposed of by a valid will;

(dd)

the decedent died on or after the date described in subsection (b) of section 8 of the American Indian Probate 2

 So in original. Probably should be followed by “Reform”.

Act of 2004, or on or after the date on which a copy of the tribal rule was delivered to the Secretary pursuant to item (aa), whichever is later; and

(ee)

the Secretary does not make a determination within 90 days after a copy of the tribal rule is delivered pursuant to item (aa) that the rule would be unreasonably difficult to administer or does not conform with the requirements in item (bb) or (cc).

(v)

Effect of subparagraph

(3)

Right of representation

(4)

Special rule relating to survival

In the case of intestate succession under this subsection, if an individual fails to survive the decedent by at least 120 hours, as established by clear and convincing evidence—

(A)

the individual shall be deemed to have predeceased the decedent for the purpose of intestate succession; and

(B)

the heirs of the decedent shall be determined in accordance with this section.

(5)

Status of inherited interests

(2)

 So in original. Another par. (2) follows par. (1).

Intestate descent of permanent improvements

(A)

Definition of covered permanent improvement

In this paragraph, the term “covered permanent improvement” means a permanent improvement (including an interest in such an improvement) that is—

(i)

included in the estate of a decedent; and

(ii)

attached to a parcel of trust or restricted land that is also, in whole or in part, included in the estate of that decedent.

(B)

Rule of descent

Except as otherwise provided in a tribal probate code approved under section 2205 of this title or a consolidation agreement approved under subsection (j)(9), a covered permanent improvement in the estate of a decedent shall—

(i)

descend to each eligible heir to whom the trust or restricted interest in land in the estate descends pursuant to this subsection; or

(ii)

pass to the recipient of the trust or restricted interest in land in the estate pursuant to a renunciation under subsection (j)(8).

(C)

Application and effect

The provisions of this paragraph apply to a covered permanent improvement—

(i)

even though that covered permanent improvement is not held in trust; and

(ii)

without altering or otherwise affecting the non-trust status of such a covered permanent improvement.’ 4

 So in original. The quotation mark probably should not appear.

(b)

Testamentary disposition

(1)

General devise of an interest in trust or restricted land

(A)

In general

Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, or a tribal probate code approved by the Secretary in accordance with section 2205 of this title, the owner of a trust or restricted interest in land may devise such interest to—

(i)

any lineal descendant of the testator;

(ii)

any person who owns a preexisting undivided trust or restricted interest in the same parcel of land;

(iii)

the Indian tribe with jurisdiction over the interest in land; or

(iv)

any Indian;

in trust or restricted status.

(B)

Rules of interpretation

(2)

Devise of trust or restricted land as a life estate or in fee

(A)

In general

Except as provided under any applicable Federal law, any trust or restricted interest in land that is not devised in accordance with paragraph (1)(A) may be devised only—

(i)

as a life estate to any person, with the remainder being devised only in accordance with subparagraph (B) or paragraph (1); or

(ii)

except as provided in subparagraph (B), as a fee interest without Federal restrictions against alienation to any person who is not eligible to be a devisee under clause (iv) of paragraph (1)(A).

(B)

Indian reorganization act lands

(i)

In general

Subject to clauses (ii) and (iii), any interest”; 5

 So in original.

in trust or restricted land that is subject to section 5107 of this title, may be devised only in accordance with—

(I)

that section;

(II)

subparagraph (A)(i); or

(III)

paragraph (1)(A).

(ii)

Exception

(I)

In general

(II)

Effect

(III)

Notice of request

(iii)

Effect

(3)

General devise of an interest in trust personalty

(A)

Trust personality 7

 So in original. Probably should be “personalty”.

defined

(B)

In general

(C)

Maintenance as trust personalty

(D)

Direct disbursement and distribution

(4)

Invalid devises and wills

(A)

Land

(B)

Personalty

(c)

Joint tenancy; right of survivorship

(1)

Presumption of joint tenancy

(2)

Exception

(d)

Descent of off-reservation lands

(1)

Indian reservation defined

For purposes of this subsection, the term “Indian reservation” includes lands located within—

(A)

(i)

Oklahoma; and

(ii)

the boundaries of an Indian tribe’s former reservation (as defined and determined by the Secretary);

(B)

the boundaries of any Indian tribe’s current or former reservation; or

(C)

any area where the Secretary is required to provide special assistance or consideration of a tribe’s acquisition of land or interests in land.

(2)

Descent

Except in the State of California, upon the death of an individual holding an interest in trust or restricted lands that are located outside the boundaries of an Indian reservation and that are not subject to the jurisdiction of any Indian tribe, that interest shall descend either—

(A)

by testate or intestate succession in trust to an Indian; or

(B)

in fee status to any other devises or heirs.

(e)

Approval of agreements

(f)

Estate planning assistance

(1)

In general

(A)

The activities conducted under this subsection shall be conducted in accordance with any applicable—

(i)

tribal probate code; or

(ii)

tribal land consolidation plan.

(B)

The Secretary shall provide estate planning assistance in accordance with this subsection, to the extent amounts are appropriated for such purpose.

(2)

Requirements

The estate planning assistance provided under paragraph (1) shall be designed to—

(A)

inform, advise, and assist Indian landowners with respect to estate planning in order to facilitate the transfer of trust or restricted lands to a devisee or devisees selected by the landowners;

(B)

dramatically increase the use of wills and other methods of devise among Indian landowners;

(C)

substantially reduce the quantity and complexity of Indian estates that pass intestate through the probate process, while protecting the rights and interests of Indian landowners; and

(D)

assist Indian landowners in accessing information pursuant to section 2216(e) of this title.

(3)

Probate code development and legal assistance grants

In carrying out this section, the Secretary may award grants, including noncompetitive grants, to—

(A)

Indian tribes, for purposes of tribal probate code development and estate planning services to tribal members;

(B)

organizations that provide legal assistance services for Indian tribes, Indian organizations, and individual owners of interests in trust or restricted lands that are qualified as nonprofit organizations under section 501(c)(3) of title 26 and provide such services pursuant to Federal poverty guidelines, for purposes of providing civil legal assistance to such Indian tribes, individual owners, and Indian organizations for the development of tribal probate codes, for estate planning services or for other purposes consistent with the services they provide to Indians and Indian tribes; and

(C)

in specific areas and reservations where qualified nonprofit organizations referred to in subparagraph (B) do not provide such legal assistance to Indian tribes, Indian organizations, or individual owners of trust or restricted land, to other providers of such legal assistance;

that submit an application to the Secretary, in such form and manner as the Secretary may prescribe.

(4)

Authorization for appropriations

(g)

Applicable Federal law

(1)

In general

Any references in subsections (a) and (b) to applicable Federal law include—

(A)

Public Law 91–627 (84 Stat. 1874);

(B)

Public Law 92–377 (86 Stat. 530);

(C)

Public Law 92–443 (86 Stat. 744);

(D)

Public Law 96–274 (94 Stat. 537); and

(E)

Public Law 98–513 (98 Stat. 2411).

(2)

No effect on laws

Nothing in this chapter amends or otherwise affects the application of any law specified in paragraph (1), or any other Federal law that pertains specifically to—

(A)

trust or restricted land located on 1 or more specific Indian reservations that are expressly identified in such law; or

(B)

the allotted land (or any interest relating to such land) of 1 or more specific Indian tribes expressly identified in such law, including any of the Federal laws governing the probate or determination of heirs associated with, or otherwise relating to, the land, interest in land, or other interests or assets that are owned by individuals in—

(i)

Five Civilized Tribes restricted fee status; or

(ii)

Osage Tribe restricted fee status.

(3)

Limitation on effect of paragraph

(h)

Rules of interpretation

In the absence of a contrary intent, and except as otherwise provided under this chapter, applicable Federal law, or a tribal probate code approved by the Secretary pursuant to section 2205 of this title, wills shall be construed as to trust and restricted land and trust personalty in accordance with the following rules:

(1)

Construction that will passes all property

(A)

In general

(B)

Permanent improvements

(C)

Application and effect

The provisions of this paragraph apply to a covered permanent improvement—

(i)

even though that covered permanent improvement is not held in trust; and

(ii)

without altering or otherwise affecting the non-trust status of such a covered permanent improvement.

(2)

Class gifts

(A)

No differentiation between relationship by blood and relationship by affinity

(B)

Meaning of “heirs” and “next of kin”, etc.; time of ascertaining class

(C)

Time for ascertaining class

(3)

Meaning of “die without issue” and similar phrases

(4)

Persons born out of wedlock

(5)

Lapsed devises

(6)

Void devises

(7)

Family cemetery plot

(i)

Heirship by killing

(1)

Heir by killing defined

(2)

No acquisition of property by killing

(3)

Descent, distribution, and right of survivorship

The heir by killing shall be deemed to have predeceased the decedent as to decedent’s trust or restricted interests in land or trust personalty which would have passed from the decedent or his estate to such heir—

(A)

under intestate succession under this section;

(B)

under a tribal probate code, unless otherwise provided for;

(C)

as the surviving spouse;

(D)

by devise;

(E)

as a reversion or a vested remainder;

(F)

as a survivorship interest; and

(G)

as a contingent remainder or executory or other future interest.

(4)

Joint tenants, joint owners, and joint obligees

(A)

Any trust or restricted land or trust personalty held by only the heir by killing and the decedent as joint tenants, joint owners, or joint obligees shall pass upon the death of the decedent to his or her estate, as if the heir by killing had predeceased the decedent.

(B)

As to trust or restricted land or trust personalty held jointly by 3 or more persons, including both the heir by killing and the decedent, any income which would have accrued to the heir by killing as a result of the death of the decedent shall pass to the estate of the decedent as if the heir by killing had predeceased the decedent and any surviving joint tenants.

(C)

Notwithstanding any other provision of this subsection, the decedent’s trust or restricted interest in land or trust personalty that is held in a joint tenancy with the right of survivorship shall be severed from the joint tenancy as though the property held in the joint tenancy were to be severed and distributed equally among the joint tenants and the decedent’s interest shall pass to his estate; the remainder of the interests shall remain in joint tenancy with right of survivorship among the surviving joint tenants.

(5)

Life estate for the life of another

(6)

Preadjudication rule

(A)

In general

(B)

Dismissal or withdrawal

(C)

Conviction

(7)

Broad construction; policy of subsection

(j)

General rules governing probate

(1)

Scope

(2)

Pretermitted spouses and children

(A)

Spouses

(i)

In general

(ii)

Exception

Clause (i) shall not apply to a trust or restricted interest in land where—

(I)

the will of a testator is executed before the date that is 1 year after the date on which the Secretary publishes a notice of certification under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374);

(II)

(aa)

the spouse of a testator is a non-Indian; and

(bb)

the testator devised the interests in trust or restricted land of the testator to 1 or more Indians;

(III)

it appears, based on an examination of the will or other evidence, that the will was made in contemplation of the marriage of the testator to the surviving spouse;

(IV)

the will expresses the intention that the will is to be effective notwithstanding any subsequent marriage; or

(V)

(aa)

the testator provided for the spouse by a transfer of funds or property outside the will; and

(bb)

an intent that the transfer be in lieu of a testamentary provision is demonstrated by statements of the testator or through a reasonable inference based on the amount of the transfer or other evidence.

(iii)

Spouses married at the time of the will

Should the surviving spouse of the testator be omitted from the will of the testator, the surviving spouse shall be treated, for purposes of trust or restricted land or trust personalty in the testator’s estate, in accordance with subsection (a)(2)(A), as though there was no will but only if—

(I)

the testator and surviving spouse were continuously married without legal separation for the 5-year period preceding the decedent’s death;

(II)

the testator and surviving spouse have a surviving child who is the child of the testator;

(III)

the surviving spouse has made substantial payments toward the purchase of, or improvements to, the trust or restricted land in such estate; or

(IV)

the surviving spouse is under a binding obligation to continue making loan payments for the trust or restricted land for a substantial period of time;

except that, if there is evidence that the testator adequately provided for the surviving spouse and any minor children by a transfer of funds or property outside of the will, this clause shall not apply.

(B)

Children

(i)

In general

(ii)

Adopted heirs

(iii)

Adopted-out children

(I)

In general

(II)

Eligible heir pursuant to other Federal law or tribal law

(3)

Divorce

(A)

Surviving spouse

(i)

In general

(ii)

Separation

(iii)

No effect on adjudications

(B)

Effect of subsequent divorce on a will or devise

(i)

In general

(ii)

Property

(iii)

Provisions of wills

(4)

After-born heirs

(5)

Advancements of trust personalty during lifetime; effect on distribution of estate

(A)

The trust personalty of a decedent who dies intestate as to all or a portion of his or her estate, given during the decedent’s lifetime to a person eligible to be an heir of the decedent under subsection (b)(2)(B), shall be treated as an advancement against the heir’s inheritance, but only if the decedent declared in a contemporaneous writing, or the heir acknowledged in writing, that the gift is an advancement or is to be taken into account in computing the division and distribution of the decedent’s intestate estate.

(B)

For the purposes of this section, trust personalty advanced during the decedent’s lifetime is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever occurs first.

(C)

If the recipient of the trust personalty predeceases the decedent, the property shall not be treated as an advancement or taken into account in computing the division and distribution of the decedent’s intestate estate unless the decedent’s contemporaneous writing provides otherwise.

(6)

Heirs related to decedent through 2 lines; single share

(7)

Notice

(A)

In general

(B)

Combined notices

(8)

Renunciation or disclaimer of interests

(A)

In general

(B)

Eligible recipients of renounced or disclaimed interests; notice to recipients

(i)

Interests in land

A trust or restricted interest in land may be renounced or disclaimed only in favor of—

(I)

an eligible heir;

(II)

any person who would have been eligible to be a devisee of the interest in question pursuant to subsection (b)(1)(A) (but only in cases where the renouncing person is a devisee of the interest under a valid will); or

(III)

the Indian tribe with jurisdiction over the interest in question;

and the interest so renounced shall pass to its recipient in trust or restricted status.

(ii)

Trust personalty

(iii)

Unauthorized renunciations and disclaimers

(C)

Acceptance of interest

(D)

Rule of construction

(9)

Consolidation agreements

(A)

In general

(B)

Effective

(C)

Effect on purchase option at probate

(k)

Notification to landowners

After receiving a written request by any owner of a trust or restricted interest in land, the Secretary shall provide to such landowner the following information with respect to each tract of trust or restricted land in which the landowner has an interest:

(1)

The location of the tract of land involved.

(2)

The identity of each other co-owner of interests in the parcel of land.

(3)

The percentage of ownership of each owner of an interest in the tract.

(l)

Pilot project for the management of trust assets of Indian families and relatives

(1)

Development pilot project

The Secretary shall consult with tribes, individual landowner organizations, Indian advocacy organizations, and other interested parties to—

(A)

develop a pilot project for the creation of legal entities such as private or family trusts, partnerships corporations, or other organizations to improve, facilitate, and assist in the efficient management of interests in trust or restricted lands or funds owned by Indian family members and relatives; and

(B)

develop proposed rules, regulations, and guidelines to implement the pilot project, including—

(i)

the criteria for establishing such legal entities;

(ii)

reporting and other requirements that the Secretary determines to be appropriate for administering such entities; and

(iii)

provisions for suspending or revoking the authority of an entity to engage in activities relating to the management of trust or restricted assets under the pilot project in order to protect the interests of the beneficial owners of such assets.

(2)

Primary purposes; limitation; approval of transactions; payments by Secretary

(A)

Purposes

(B)

Limitation

(C)

Secretarial approval of transactions

(D)

Payments

(3)

Limitations on pilot project

(A)

Number of organizations

(B)

Regulations required

(4)

Report to Congress

Prior to the expiration of the pilot project provided for under this subsection, the Secretary shall submit a report to Congress stating—

(A)

a description of the Secretary’s consultation with Indian tribes, individual landowner associations, Indian advocacy organizations, and other parties consulted with regarding the development of rules and regulations for the creation and management of interests in trust and restricted lands under the pilot project;

(B)

the feasibility of accurately monitoring the performance of legal entities such as those involved in the pilot project, and the effectiveness of such entities as mechanisms to manage and protect trust assets;

(C)

the impact that the use of entities such as those in the pilot project may have with respect to the accomplishment of the goals of this chapter; and

(D)

any recommendations that the Secretary may have regarding whether to adopt a permanent program as a management and consolidation measure for interests in trust or restricted lands.

(m)

Notice to heirs

Prior to holding a hearing to determine the heirs to trust or restricted property, or making a decision determining such heirs, the Secretary shall seek to provide actual written notice of the proceedings to all heirs. Such efforts shall include—

(1)

a search of publicly available records and Federal records, including telephone and address directories and including electronic search services or directories;

(2)

an inquiry with family members and co-heirs of the property;

(3)

an inquiry with the tribal government of which the owner is a member, and the tribal government with jurisdiction over the property, if any; and

(4)

if the property is of a value greater than $2,000, engaging the services of an independent firm to conduct a missing persons search.

(n)

Missing heirs

(1)

For purposes of this subsection and subsection (m), an heir may be presumed missing if—

(A)

such heir’s whereabouts remain unknown 60 days after completion of notice efforts under subsection (m); and

(B)

in the proceeding to determine a decedent’s heirs, the Secretary finds that the heir has had no contact with other heirs of the decedent, if any, or with the Department relating to trust or restricted land or other trust assets at any time during the 6-year period preceding the hearing to determine heirs.

(2)

Before the date for declaring an heir missing, any person may request an extension of time to locate such heir. The Secretary shall grant a reasonable extension of time for good cause.

(3)

An heir shall be declared missing only after a review of the efforts made in the heirship proceeding and a finding has been made that this subsection has been complied with.

(4)

An heir determined to be missing pursuant to this subsection shall be deemed to have predeceased the decedent for purposes of descent and devise of trust or restricted land and trust personalty within that decedent’s estate.

(o)

Purchase option at probate

(1)

In general

(2)

Sale of interest at fair market value

Subject to paragraph (3), the Secretary is authorized to sell trust or restricted interests in land subject to this subsection, including the interest that a surviving spouse would otherwise receive under subparagraph (A) or (D) of subsection (a)(2), at no less than fair market value, as determined in accordance with the provisions of this chapter, to any of the following eligible purchasers:

(A)

Any other eligible heir taking an interest in the same parcel of land by intestate succession or the decedent’s other devisees of interests in the same parcel who are eligible to receive a devise under subsection (b)(1)(A).

(B)

All persons who own undivided trust or restricted interests in the same parcel of land involved in the probate proceeding.

(C)

The Indian tribe with jurisdiction over the interest, or the Secretary on behalf of such Indian tribe.

(3)

Request to purchase; consent requirements; multiple requests to purchase

(A)

In general

No sale of an interest in probate shall occur under this subsection unless—

(i)

an eligible purchaser described in paragraph (2) submits a written request to purchase prior to the distribution of the interest to heirs or devisees of the decedent and in accordance with any regulations of the Secretary; and

(ii)

except as provided in paragraph (5), the heirs or devisees of such interest, and the decedent’s surviving spouse, if any, receiving a life estate under subparagraph (A) or (D) of subsection (a)(2) consent to the sale.

(B)

Multiple requests to purchase

(4)

Appraisal and notice

Prior to the sale of an interest pursuant to this subsection, the Secretary shall—

(A)

appraise the interest at its fair market value in accordance with this chapter; and

(B)

provide eligible heirs, other devisees, and the Indian tribe with jurisdiction over the interest with written notice, sent by first class mail, that the interest is available for purchase in accordance with this subsection.

(5)

Small undivided interests in Indian lands

(A)

In general

Subject to subparagraph (B), the consent of a person who is an heir or surviving spouse otherwise required under paragraph (3)(A)(ii) shall not be required for the sale of an interest at probate under this subsection if—

(i)

the interest is passing by intestate succession;

(ii)

prior to the sale the Secretary determines in the probate proceeding that, at the time of death of the applicable decedent, the interest of the decedent in the land represented less than 5 percent of the entire undivided ownership of the parcel of land as evidenced by the Secretary’s records as of the time the determination is made; and

(iii)

(I)

the Secretary is purchasing the interest under the program authorized under section 2212(a)(1) of this title; or

(II)

after receiving a notice under paragraph (4)(B), the Indian tribe with jurisdiction over the interest is proposing to purchase the interest from an heir or surviving spouse who is not residing on the property in accordance with clause (i), and who is not a member, and is not eligible to become a member, of that Indian tribe.

(B)

Exception

(6)

Distribution of proceeds

(A)

In general

(B)

Holding in trust

Proceeds described in subparagraph (A) shall be deposited and held in an account as trust personalty if the interest sold would otherwise pass to—

(i)

the heir, by intestate succession under subsection (a); or

(ii)

the devisee in trust or restricted status under subsection (b)(1).

(Pub. L. 97–459, title II, § 207, as added Pub. L. 106–462, title I, § 103(4), Nov. 7, 2000, 114 Stat. 1995; amended Pub. L. 108–374, §§ 3, 6(a)(2), (4), (e), Oct. 27, 2004, 118 Stat. 1774, 1797, 1800, 1805; Pub. L. 109–157, § 4, Dec. 30, 2005, 119 Stat. 2950; Pub. L. 109–221, title V, § 501(a), May 12, 2006, 120 Stat. 343; Pub. L. 110–453, title II, § 207(c), Dec. 2, 2008, 122 Stat. 5030.)

cite as: 25 USC 2206