YOUR LEGAL LAST WILL AND TESTAMENT IS A GIFT TO YOUR FAMILY

By Vivian LaMoore, Inaajimowin Editor

Preparing for passing on is not something one tends to think about often under most circumstances. But knowing you have documented what is to become of your children and/or your property may allow for some peace of mind. Preparing a will is one way to ease your mind and help your surviving family cope with life after you are gone.

The Mille Lacs Band of Ojibwe Office of the Solicitor General has partnered with the University of Denver College of Law in the Tribal Wills Project. The project aims to provide free preparation of wills, medical powers of attorney, and related documents to tribal members who would not otherwise have access to legal assistance. Wills are particularly important for tribal members, because without a will, if the tribal member happens to own trust land, virtually all of the tribal member’s trust land goes only to the one oldest child — nothing to the surviving spouse or to the other children.

Almost no one thinks that is an appropriate distribution, yet that is what is required by a fairly recent law enacted by Congress — the American Indian Probate Reform Act (AIPRA). The Act permits a tribal member to make a more appropriate distribution — if the tribal member writes a valid will.

A will is not just for those who own property. Those with young children should consider having some documentation in place to specify who will become the guardian of the children if both parents succumb to an untimely death. A good place for documentation on guardianship is in a will.

When someone passes on, the last thing family and friends need is the stress of wondering what that person would have wanted as to how the property should be distributed, what memorial service would be most appropriate, and who should take charge of making all the necessary arrangements. By taking the time to write a will, much of this stress can be reduced.

Wills do not need to be complex. A will simply spells out who should get what property, and who should be the Personal Representative — someone to take charge of making sure that the wishes of the testator (the person who writes the will) are carried out properly. It is also recommended to prepare a Health Care Power of Attorney at the time of preparing a will. The Health Care Power of Attorney is usually a trusted relative or friend who will have the authority to make necessary medical decisions when a person ends up in a hospital or other facility and is no longer able to make medical decisions for themselves. It is good for everyone to know, in advance, who would have the responsibility of making decisions in a situation like that.

Having everything written down, in proper fashion, may be a great help in preventing family fights. It also brings peace to the person who has written the will knowing that they have made the necessary decisions.

The problem is that there are very few lawyers on Indian reservations to help with wills, and even fewer lawyers who understand the complexities of AIPRA. So, DU law students are attempting to help fill that gap by donating their time, often during spring break and vacation time. The students will be coming to the Mille Lacs Reservation during the month of May to assist Band members in preparing their will. Keep in mind, you do not need to be an Elder to have a written will — anyone with property or children, or if you just want to prepare a Health Care Power of Attorney, is welcome and able to participate.

The process will take about two hours on two different days. On the first day, you will talk with a law student about what you would like to have included in your documents. You will have plenty of time to ask questions. To save time at the interview, write down the names of the friends and family you want to mention in the will. Include the birthdate, address, cellphone number, and enrollment or census number for each person, if you know it.

Other items to think about before your first meeting:

Special Gifts — What is important for specific family members to have?

Personal Representative — This is the person you would like to take charge when you pass on, to ensure that your wishes are carried out after you pass.

Joint Tenants or Tenants in Common — If you want to give a piece of land to be owned by several people at the same time, you will need to decide whether you want them to own the property as Joint Tenants or as Tenants in Common.

Joint Tenants means that the last person surviving will own all of the land. Tenants in Common means that as each person passes on, that person’s share goes to the person’s chosen heir/s or into their estate. The law student will explain more about this.

That night after the interview, the law student will write up all of the documents and have them checked by a licensed attorney.

On a second day, when the documents are ready, you will come back for the signing ceremony, which will take at least an hour, as the law student goes over everything to be sure that it is right.

More information on how to sign up to reserve an appointment will be coming next month from OSG.