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Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 9 - PROBATE



Sec. 9-1. DETERMINATION OF HEIRS; PROBATE.


When any member of the community dies leaving property other than allotment or other trust property subject to the jurisdiction of the United States, any member claiming to be an heir to the decedent may bring suit in the Fort McDowell Yavapai Tribal Court to have the court determine the heirs of the decedent and to divide among the heirs such property of the decedent. No determination of the heirs shall be made unless all the possible heirs known to the court, to the superintendent and to the claimant, have been notified of the suit and given full opportunity to come before the court and defend their interests. Possible heirs who are not residents of this community under the jurisdiction of the court must be notified and a copy of the notice mailed to them must be preserved in the record of the case.


Sec. 9-2. PROCEDURE OF COURT.


In the determination of heirs, the court shall apply the laws of the State of Arizona. The court shall also be empowered to appoint a temporary custodian or administrator to supervise and protect the assets of the estate. The court may also issue permits to sell such property as may be necessary before determination and the division of the administrator for the fulfillment of his duties, and may also fix the fee, which is not to exceed in any case one percent of the appraised value of the estate.


Sec. 9-3. APPROVAL OF WILLS

When any member of the Fort McDowell Yavapai Community dies, leaving a will disposing only of property other than an allotment or other trust property subject to the jurisdiction of the United States, the Fort McDowell Yavapai Tribal Court shall at the request of any member of the Fort McDowell Yavapai Community named in the will or any other interested party determine the validity of the will after giving notice and full opportunity to appear in court to tell all persons who might be heirs of the decedent, as under section 9-1. A will shall be deemed valid if the decedent had a sane mind and understood what he was doing when he made the will and was not subject to any undue influence of any kind from any person; and if the will was made in writing and signed by the decedent in the presence of two (2) witnesses who also signed the will. If the court determines the will to be validly executed, it shall order the property described in the will to be given to the persons named in the will or to their heirs.

(UNLAWFUL DISPOSING OF PROPERTY: SEE SEC. 6-98.)





Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

TRIBAL RESOLUTION AUTHORIZING THE AMENDMENT OF THE FORT MCDOWELL TRIBAL CODE CHAPTER 9, ENTITLED "PROBATE"

Resolution No. Ft. McD 97-94

WHEREAS, The Fort McDowell Indian Community ("Community") feels that it would be in the best interest of Tribal Members to have a more simplified Probate Process when the estate of any decedent contains personal property with limited value; and

WHEREAS, The Fort McDowell Tribal Council ("Council") has the authority to amend the Community's Tribal Code so that it reflects the desires and the best interest of Tribal Members; and

NOW, THEREFORE, BE IT RESOLVED, The Council hereby amends the Fort McDowell Tribal Code Chapter, 9 entitled "Probate" by adding the following language to Chapter 9 of the Fort McDowell Tribal Code:

Sec. 9-2.1 Collection of Decedent's Personal Property by Affidavit

A person claiming to be the rightful successor to the personal properly in a decedent's estate does not have to go to court to obtain the decedent's personal property, but instead can obtain the decedent's personal property by way of affidavit if:
  1. The value of all of the personal property in the decedent's estate does not exceed thirty thousand dollars.

  2. Thirty days have elapsed since the death of the decedent.

  3. No application or petition for the appointment of a personal representative or executor is pending or has been granted in any court which has jurisdiction.

  4. The claiming successor is entitled to payment or delivery of the personal property under Section 9-2.

    In order to obtain the personal property of the decedent by way of affidavit the rightful successor must provide written testimony of and swear and affirm to items one through four of Section 9-2.1. Also, the rightful successor must attach a copy of the decedent's death certificate to the affidavit. In addition, the rightful successor must state five through seven of Section 9-2.1 in his or her affidavit:

  5. The death certificate of the decedent.

  6. The name of the decedent and the date of his or her death.

  7. The name of the rightful successor and the rightful successor's relationship to the decedent.

  8. In the event that any person or entity later asserts that another is the rightful successor to the personal property the decedent that I am receiving hereunder, I agree to indemnify and hold harmless the person or entity which issuing personal property to me pursuant to this affidavit.
If there is more than one rightful successor to the personal property of the decedent's estate, each rightful successor must submit their own affidavit stating the percentage of the personal property entitled to under this section. If the personal property is not of the type that can be split into shares, the parties cannot proceed by affidavit, but must proceed in court so that the judge may distribute the property according to law.

Any individual who is the rightful successor to the personal property of the decedent's estate has the right to transfer his or her rightful share to another person. Any consent to transfer must be submitted by affidavit along with the affidavit for collection of personal property as described in Section 9-2.1.

Sec. 9.2.2 Effect of Affidavit

Any person or entity indebted to the decedent or having possession of decedent's personal property shall make payment of the indebtedness or deliver the personal property to the rightful successor upon the rightful successor's presentation of the affidavit.

The person or entity paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to affidavit under Section 9.2.1 and 9.2.2 is discharged and released to the same extent as if he dealt with a personal representative of the decedent. The person or entity is not required to seek evidence of the truth of any statement in the affidavit.

For the purposes of sections 9.2.1 and 9.2.2 Personal Property includes all property other than real estate.

Any person who presents an affidavit for personal property for receipt of personal property when he or she is not the rightful successor may be subject to criminal prosecution.

CERTIFICATON

Pursuant to the authority contained in Article IV, Section 1 (f), (h) and (i) and Section 2 (h) of the Constitution and By-laws of the Fort McDowell Mohave-Apache Community ratified by the Tribe on October 3, 1936 and approved by the Secretary of the Interior on November 24, 1936, the foregoing resolution was adopted this 2nd day of September, 1997 at a Special Council Meeting held at the Fort McDowell Mohave-Apache Indian Community at which a quorum of 4 members were present, 1 was absent, by a vote of 3 for and 0 opposed and 0 abstained.

Gilbert Jones, Sr., President

Fort McDowell Community Council
09-02-27

Rozelda Duenas, Secretary
Fort McDowell Tribal Council
09-02-27






Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630


TRIBAL RESOLUTION RESCINDING PROBATE CODE SECTIONS 9-2.1 & 9-2.2

Resolution No. Ft. McD 97-102

WHEREAS,
The Fort McDowell Indian Community ("Community") recently amended the Fort McDowell Mohave-Apache Indian Community Law and Order Code ("Code") by adding Probate Code Sections 9-2.1 & 92.2 to the Code in an effort to expedite the Probate Process for estates of minimal value; and

WHEREAS, The Fort McDowell Tribal Council ("Council") has determined that the practical effect of Probate Code Section 9-2.1 & 9-2.2 is that Tribal Member beneficiaries could be held liable for the tax liability of decedents; and

WHEREAS, the Council feels that it is in the best interest of the Community to shield Tribal Members from potential liability; and

WHEREAS, the Council has the authority to enact, amend and rescind civil codes and ordinances.

NOW THEREFORE BE IT RESOLVED, The Council hereby rescinds Code Sections 9-2.1 & 9-2.2. The language recited below is hereby rescinded:

Sec. 9-2.1 Collection of Decedent's Personal Property by Affidavit

A person claiming to be the rightful successor to the personal property in a decedent's estate does not have to go to court to obtain the decedent's personal property, but instead can obtain the decedent's personal property by way of affidavit if:
  1. The value of all of the personal property in the decedent's estate does not exceed thirty thousand dollars.

  2. Thirty days have elapsed since the death of the decedent.

  3. No application or petition for the appointment of a personal representative or executor is pending or has been granted in any court which has jurisdiction.

  4. The claiming successor is entitled to payment or delivery of the personal properly under Section 9-2.

    In order to obtain the personal property of the decedent by way of affidavit the rightful successor must provide written testimony of and swear and affirm to items one through four of Section 9-2.1. Also, the rightful successor must attach a copy of the decedent's death certificate to the affidavit. In addition, the rightful successor must state five through seven of Section 9-2.1 in his or her affidavit:

  5. The death certificate of the decedent.

  6. The name of the decedent and the date of his or her death.

  7. The name of the rightful successor and the rightful successor's relationship to the decedent.

  8. In the event that any person or entity later asserts that another is the rightful successor to the personal property " he decedent that I am receiving hereunder, I agree to indemnify and hold harmless the person or entity which issuing personal property to me pursuant to this affidavit.
If there is more than one rightful successor to the personal property of the decedent's estate, each rightful successor must submit their own affidavit stating the percentage of the personal property entitled to under this section. If the personal property is not of the type that can be split into shares, the parties cannot proceed by affidavit, but must proceed in court so that the judge may distribute the property according to law.Any individual who is the rightful successor to the personal property of the decedent's estate has the right to transfer his or her rightful share to another person. Any consent to transfer must be submitted by affidavit along with the affidavit for collection of personal property as described in Section 9-2.1.

Sec. 9.2.2 Effect of Affidavit

Any person or entity indebted to the decedent or having possession of decedent's personal property shall make payment of the indebtedness or deliver the personal property to the rightful successor upon the rightful successor's presentation of the affidavit.

The person or entity paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to affidavit under Section 9.2.1 and 9.2.2 is discharged and released to the same extent as if he dealt with a personal representative of the decedent. The person or entity is not required to seek evidence of the truth of any statement in the affidavit.

For the purposes of sections 9.2.1 and 9.2.2 Personal Property includes all property other than real estate.

Any person who presents an affidavit for personal property for receipt of personal property when he or she is not the rightful successor may be subject to criminal prosecution.

CERTIFICAT10N

Pursuant to the authority contained in Article IV, Section 1 (f), (h) and (i) and Section 2 (h) of the Constitution and By-laws of the Fort McDowell Mohave-Apache Community ratified by the Tribe on October 3, 1936 and approved by the Secretary of the Interior on November 24, 1936, the foregoing resolution was adopted this 15th day of September, 1997 at a Special Council Meeting held at the Fort McDowell Mohave-Apache Indian Community at which a quorum of 5 members were present, 0 were absent, by a vote of 4 for and 0 opposed and 0 abstained.

Gilbert Jones, Sr., President
Fort McDowell Community Council
09-15-97

Rozelda Duenas. Secretary
Fort McDowell Tribal Council
09-15-97


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