WILLS, ESTATES AND TRUSTS PRACTICE INFORMATION


If you own property, a will and other estate planning tools like trusts can make decisions easier for your loved ones if something happens to you. Planning ahead by having the proper estate plan -just in case- can make it so that your final wishes about your possessions will be honored.  The alternative is to have the State determine what happens to your property.  Why risk leaving your loved ones to deal with a lengthy formal court proceeding to administer your estate? Why risk increased tax liabilities by not planning ahead?  Whether you need a will drafted for the first time or need to update a previous will or trust due to changes in family, tax or other life changing  circumstances, Smith, Shelton and Ragona, LLC, can assist clients in every stage of the estate planning process. The following are examples of estate planning tools we utilize:

1.      The appropriate estate planning documents to accommodate different family situations and different estate values

2.      Revocable and non-revocable trusts

3.      Planning and utilizing estate tax exemptions/credits and marital deduction formulas to reduce estate and gift taxes whenever possible

4.      Living wills

5.      Powers of attorney

6.      Medical Durable Power of Attorney

7.      Trusteeships, fiduciary, conservatorship, guardianship and personal representative issues

8.      American Indian wills, trusts and estates

In addition, we can help clients with the administration of a decedent’s estate, including probate of wills and intestate estates (estates without wills) and advising personal representatives with the administration of an estate.

Please call us at 303-255-3588 to set up an initial interview and to find out more about our wills, trusts and estates law practice.

Please NOTE: The information in this flyer is intended to inform you about our practice; it is not intended to be an advertisement. Please also note that the information in this flyer is not intended to be legal advice and that this flyer in no way creates an attorney-client relationship. An attorney-client relationship may only be created with Smith, Shelton and Ragona, LLC via a written contract of representation.

Snapshot of the American Indian Probate Reform Act and the Importance of a Will

            The American Indian Probate Reform Act (AIPRA) (P.L. 108-374; 118 Stat. 1773) was enacted in 2004.  AIPRA applies to American Indians who: (1) are members of a tribe or are eligible for membership, (2) meet the definition of “Indian”; (3) owned a trust interest as of October 27, 2004, and (4) died on or after June 20, 2006.  AIPRA does not apply to members of the Five Civilized Tribes or the Osage Tribe who own land that is in restricted fee status.  AIPRA applies if both: 1) a person did not have a will when he/she passed on and 2) if the tribe did not have an approved tribal probate code.  AIPRA applies to IIM accounts, to trust property where the tribe has NOT adopted an approved tribal probate code, and when the tribe has not adopted a probate code and the 5% interest rule applies.  AIPRA does not apply to non-trust property, personal possessions and/or money. 

 

            It is important to write a will, especially if you have property that will fall under AIPRA.  If you do not write a will, AIPRA may require that your trust property pass first to your spouse and children, followed by grandchildren, great-grandchildren, and if you have no heirs, then to your parents, or brothers and sisters as long as they meet the definition of Indian or are a descendant within two generations. 

 

If you do not write a will, and have less than 5% interest in a whole parcel of land, then your spouse may live in the family home on the parcel.  After your spouse passes on, that less than 5% interest will go to the eldest eligible child, then to the eldest eligible grandchild, and then to the eldest eligible great-grandchild.  You will not be able to leave your trust property to any other person.  Furthermore, if you have a less than 5% interest in a whole parcel of land, the DOI may purchase it for fair market value during the probate proceeding without the consent of your heirs. The property will not pass to your heirs at all in this case.   

 

The best way to ensure that your property will pass to the people you want is for you to have a will.

What if you are suspected of DUI or taken to the Police Station in Colorado?

KNOW YOUR RIGHTS IF…

YOU’RE SUSPECTED FOR DRUNK DRIVING IN COLORADO:

1. An officer has the right to request your driver’s license, registration, and proof of insurance.

2. If you are suspected of drunk driving (DUI) and refuse to take a breathalyzer test, your driver’s license will be suspended. If anyone suspected of DUI refuses to take a breathalyzer test, which is preceded by an “express consent” acknowledgement by the officer, it will result in an automatic one-year revocation of your driver’s license in Colorado.  Additionally, you have a limited amount of time to request a hearing before the Colorado DMV after a DUI citation.

3. As of July 1, 2010, a new law was passed that imposes stricter penalties on repeat offenders.  Now a ten day minimum jail sentence is mandated for one’s second drunk driving offense and a 60 day minimum jail sentence for third and subsequent offenses.

YOU’RE ARRESTED OR TAKEN TO A POLICE STATION IN COLORADO:

1. You have the right to remain silent and to talk to a lawyer before you talk to the police.

2. You have the right to ask for a lawyer. If you cannot afford a lawyer, one will be appointed to represent you at no cost (defendants of certain misdemeanors may not receive an attorney at no cost, but may hire an attorney).

3. Within a reasonable time after your arrest or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen in on the phone call.

This information should not be used to predict the outcome of any particular legal case. Rather, you should consult your own attorney about your individual case. This information is not intended to be legal advice and its inclusion on this website in no way creates an attorney-client relationship. Smith, Shelton & Ragona, LLC require that you enter into a written representation agreement before you become our client. Smith, Shelton & Ragona, LLC, does not guarantee that the content on this website is accurate, complete or up-to-date because the law changes over time. Please consult an independent attorney of your choice before taking legal action or relying on the content of this website. Finally, please note that Colorado does not certify attorneys as specialists in any field.

50 Year Land and Grazing Dispute on Navajo Reservation Resolved; Homesite Leases on McCracken Mesa Reaffirmed.

The Johnson family residing on the Navajo Reservation’s McCracken Mesa, located in the southeastern portion of Utah, can finally live in peace. After litigating a dispute over homesite leases and grazing permit rights, Attorney Keith C. Smith of Smith, Shelton & Ragona, LLC, (retained in 2007) secured the family’s right to reside on the Mesa without any further interference. On September 24, 2010, Justice Arene Black of the Navajo Nation Trial Court ruled against Helen Yellowman, a grazing permit holder, to stop interrupting homesite lease improvements, stop interference with a Johnson grazing permit, or otherwise interfering with the Johnson’s ability to improve their leases.

Attorney Smith, a full blooded member of the Navajo Nation, represented the Johnson family in the dispute. In deciding to take the case, Smith commented, “I have vested interest in land disputes, particularly this area, because I am not only a member of the tribe, but I am from that community. I feel somewhat duty-bound to do what I can to help those in my community protect their interests.” Moreover, Smith believed the issue needed to be resolved for legal purposes as well. He stated, “[T]his was a unique case because it involved a mix of land and grazing issues, which were intertwined. That aspect coupled with the fact the area in dispute was added to the Navajo Nation in 1958, with no formal resolution regarding permitted grazing, made it particularly salient and necessary for resolution.”

The facts of the dispute became quite convoluted and complex, rendering a 43-page order written by Judge Black. In short, the Johnsons were sued by Helen Yellowman (Plaintiff), who claimed she was the rightful heir to a grazing permit of a man named “Little Wagon,” which in turn granted her the right to Little Wagon’s alleged customary use area, which is now occupied by Smith’s client – the Johnsons.

McCracken Mesa was added to the Navajo reservation in 1958, as an exchange for the land taken when Lake Powell was created and Navajo land flooded to create the lake. Yellowman argued her permit should grant her priority over any other persons occupying the area she now claimed on McCracken Mesa. However, as the evidence was heard, it was determined that no grazing permits were ever issued for McCracken Mesa, much less one that was issued before it even became part of the reservation.

The main body of ruling stated that Yellowman cannot use a grazing permit to expel others from land; it can’t be used as a deed or similar instrument to claim “I own this land.” Moreover, the court stated that Yellowman waited much too long to make use of the grazing permit, and to now attempt to establish a use after 50 years after the fact is not plausible. While the court did say it did not have the authority to cancel the grazing permit, which was not a request made by the Johnsons, it did say you must put it to beneficial use or face the consequences, such as cancellation.

From a legal perspective, Smith commented, “This ruling is important because it makes a clear distinction between home site leases (leases obtained so you build or place a home in a given area on the reservation) and grazing permits, the respective legal authority granted with each, and how each one can be used by a member.”

However, from his personal vantage point, he added, “I do think this case will have an impact [on the community]. For so long, even since I was young boy living on the reservation, residents seemed to assume a grazing permit could be wielded like a sword to expel others from “their” grazing areas. I feel there is somewhat of a misunderstanding of ‘use and occupancy’ of trust land as opposed to outright ownership. I think the ruling will shed some light on how similar disputes ought to be resolved.
Reflecting on the non-monetary fulfillment a case like this can bring, Smith concluded, “Although the court did not grant everything in our clients’ counterclaims, which rarely happens, they were elated by the court’s ruling on what were clearly the most important issues germane to the case, namely the court’s reaffirmation of their home site leases and right to occupy their respective areas, without threat of eviction, harassment or delays in improving their homes. When I broke the news, I could hear one client get choked up and reply: ‘Finally, after so long this matter has been finished. We can now move on.’”

2010 Oglala Nation Pow-Wow and Rodeo Challenge

Smith Shelton and Ragona, council for the Oglala Sioux Tribe, was informed of a challenge issued at the Tribe’s most recent Tribal Council meeting. The Tribe informed all of the law firms representing it that one attorney donated $1,000.00 to help support the 2010 Oglala Nation Pow-Wow and Rodeo. That attorney, Mario Gonzales, extended the challenge for all other attorneys and law firms representing the Tribe do the same.

First, Smith, Shelton and Ragona would like to thank Mr. Gonzales for extending the challenge. Even though Smith, Shelton and Ragona already purchased an ad in the 2010 Oglala Nation Pow-Wow and Rodeo program, the firm still met the challenge. Not only did the firm agree to donate $1,000.00 to this year’s event, but it would like to return the challenge and double it.

Attorneys Smith, Shelton and Ragona pledge to donate $2,000.00 to next year’s Oglala Nation Pow-Wow and Rodeo, and hereby challenges the Gonzales Law firm to match its $2,000.00 donation next year.

President Obama’s Memorandum on Tribal Consultation

Executive Memorandum of November 5, 2009 for the Heads
of Executive Departments and Agencies on Tribal
Consultation

I. SUMMARY:
Memo was delivered at the Executive Office’s National Tribal Leaders Summit on November 5, 2009 in Washington, D.C.

  • Reaffirms E.O. 13175 Consultation and Coordination with Indian Tribal Governments
  • Requires agency heads to develop detailed plans of action; then, annual progress reports
  • Requires agency to designate an appropriate official to coordinate implementation of the plan and prepare required reports

II. DISCUSSION

  1. By February 3, 2010 (90 days hence): Each agency head is directed to submit a detailed plan of actions the agency will take to implement the policies and directives of E.O. 13175 to the Director of OMB, after consultation with Indian tribes and tribal officials per E.O. 13175.
  2. By July 30, 2010 (270 days hence) and annually thereafter: Each agency head is directed to submit a progress report on the status of each action included in its plan together with any proposed updates to its plan to the Director of OMB. Each agency’s plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum.
  3. By July 30, 2010 (1 year hence): The Director of OMB and Assistant to the President for Domestic Policy shall present a report on the implementation of EO 13175, across the executive branch, based on the review of agency plans and progress reports.

Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report.

For Immediate Release                    November 5, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND
AGENCIES

SUBJECT: Tribal Consultation

The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to
Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible
for strengthening the government-to-government relationship between the United States and Indian tribes.
History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has
greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.
My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as
defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its
plan.

Each agency’s plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review
agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175.
In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on more (OVER) 2 the implementation of Executive Order 13175 across the executive branch
based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this
report.
The terms “Indian tribe,” “tribal officials,” and “policies that have tribal implications” as used in this memorandum are as defined in Executive Order 13175.
The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.
BARACK OBAMA
EXECUTIVE ORDER 13175
CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government to government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; it is hereby ordered as follows:
Section 1. Definitions.

For purposes of this order:
(a) “Policies that have tribal implications” refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
(b) “Indian tribe” means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(c) “Agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) “Tribal officials” means elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.
Sec. 2. Fundamental Principles.

In formulating or implementing policies that have tribal implications, agencies shall be guided by the following fundamental principles:
(a) The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties,  statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.
(b) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government to government basis to address issues concerning Indian tribal self government, tribal trust resources, and Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian tribes to self government and supports tribal sovereignty and self determination.
Sec. 3. Policymaking Criteria.

In addition to adhering to the fundamental principles set forth in section 2, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have tribal implications:
(a) Agencies shall respect Indian tribal self government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.

(b) With respect to Federal statutes and regulations administered by Indian tribal governments, the Federal Government shall grant Indian tribal governments the maximum administrative discretion possible.
(c) When undertaking to formulate and implement policies that have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve program objectives;
(2) where possible, defer to Indian tribes to establish standards; and
(3) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.
Sec. 4. Special Requirements for Legislative Proposals.

Agencies shall not submit to the Congress legislation that would be inconsistent with the policymaking criteria in Section 3.
Sec. 5. Consultation.
(a) Each agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. Within 30 days after the effective date of this order, the head of each agency shall designate an official with
principal responsibility for the agency’s implementation of this order.

Within 60 days of the effective date of this order, the designated official shall submit to the Office of Management and Budget (OMB) a description of the agency’s consultation process.
(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the Indian tribal government or the tribe in complying with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) consulted with tribal officials early in the process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency’s prior consultation with tribal officials, a summary of the nature of their concerns and the agency’s position supporting the
need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(C) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation,
(1) consulted with tribal officials early in the process of developing the proposed regulation;
(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency’s prior consultation with tribal officials, a
summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(3) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(d) On issues relating to tribal self government, tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.
Sec. 6. Increasing Flexibility for Indian Tribal Waivers.
(a) Agencies shall review the processes under which Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by law, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency, or as otherwise provided by law or regulation. If the application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefore.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
Sec. 7. Accountability.
(a) In transmitting any draft final regulation that has tribal implications to OMB pursuant to Executive Order 12866 of September 30, 1993, each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements of this order
have been met in a meaningful and timely manner.
(b) In transmitting proposed legislation that has tribal implications to OMB, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this order the Director of OMB and the Assistant to the President for Intergovernmental Affairs shall confer with tribal officials to ensure that this order is being properly and effectively implemented.
Sec. 8. Independent Agencies.

Independent regulatory agencies are encouraged to comply with the provisions of this order.
Sec. 9. General Provisions.

(a) This order shall supplement but not supersede the requirements contained in Executive Order 12866 (Regulatory Planning and Review), Executive Order 12988 (Civil Justice Reform), OMB Circular A 19, and the Executive Memorandum of April 29, 1994, on Government to Government Relations with Native American Tribal Governments.

(b) This order shall complement the consultation and waiver provisions in sections 6 and 7 of Executive Order 13132 (Federalism).

(c) Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments) is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date of this order.
Sec. 10. Judicial Review. This order is intended only to improve the internal management of the executive branch, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the United States, its agencies, or any person.
WILLIAM J. CLINTON
THE WHITE HOUSE,
November 6, 2000.