43 CFR 30.403 – Is consent required for a purchase at probate?
(a) Except as provided in paragraph (e) of this section, to purchase at probate a decedent‘s interest in trust or restricted property, the eligible purchaser must have the consent of:
Terms Used In 43 CFR 30.403
- Decedent: A deceased person.
- Intestate: Dying without leaving a will.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
- Probate: Proving a will
- restricted property: as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation. See 43 CFR 30.101
(1) The heir or devisee of the share to be purchased;
(2) Any surviving spouse whose share is to be purchased and who receives a life estate under 25 U.S.C. § 2206(a)(2)(A) or (D); or
(3) Any recipient of an interest received under an approved consolidation agreement whose share is to be purchased.
(b) If consent is required from an heir or devisee for a purchase at probate, the consent may be given either:
(1) During a hearing as part of the record; or
(2) In writing to OHA.
(c) An heir or devisee’s failure to attend a hearing or respond to an order will not be presumed to constitute consent.
(d) An heir or devisee may withdraw consent at any time before the purchase is final.
(1) To notify OHA, the heir or devisee must state, either on record at the probate hearing, or in writing to OHA, that the heir or devisee is not willing to consent to sell the property under any circumstances and/or is not willing to consider any bids to purchase the property interest.
(2) When OHA receives such notice, it will deny the request to purchase the property interest to which the notice applies.
(e) If you are the Tribe with jurisdiction over the parcel containing the interest, you do not need the consent of those listed under paragraph (a) of this section if the following five conditions are met:
(1) The interest will descend by intestate succession;
(2) The judge determines based on the Department’s records that the decedent’s interest at the time of death was less than 5 percent of the entire undivided ownership of the parcel of land;
(3) The heir or surviving spouse was not residing on the property at the time of the decedent’s death;
(4) The heir or surviving spouse is not a member of your Tribe or eligible to become a member; and
(5) The interest is not included in an approved consolidation agreement.
(f) BIA may purchase an interest in trust or restricted land on behalf of the Tribe with jurisdiction over the parcel containing the interest if BIA obtains consent under paragraph (a) of this section or the conditions in paragraph (e) of this section are met.