American Indian Probate
There are obstacles to overcome when serving American Indian clients. American Indians are distrustful of attorneys because of their long history of dealing with state and federal government theft and abuses. For attorneys, travel was often required over long distances to meet with clients at their home reservations. There are often cultural and traditional norms that have to be understood, such as tribal members’ reluctance to talk about death because of their beliefs. Attorneys must be sensitive and able to work with this type of client. Attorneys must also be knowledgeable about each tribe’s code and policies impacting personal property, home ownership, and land issues.
As with any will preparation, an attorney needs to determine the extent and quality of the client’s real and personal property. When working with a tribal member, the attorney’s next level of inquiry is whether or not the property is held in trust by the federal government. For property that is held in such trust, federal law applies and the tribe’s code may also come into play.
It is also important that any drafting attorney understands an American Indian person’s will may have to be probated in three separate courts: federal courts have exclusive jurisdiction to probate trust land ownership and trust personalty (usually a cash account held by the federal government); state courts have jurisdiction to probate off-reservation non-trust real and personal property; and most tribal courts have codes providing jurisdiction to probate on-reservation non-trust personal property, which includes houses located on trust land. In addition, some tribes have codes which have been approved by the federal government and which expand jurisdiction to determine trust issues, such as who qualifies as an heir when trust property is involved. It is not unusual for a tribe to use cultural norms to distribute certain personal property such as family heirlooms.
A properly drafted will can meet the federal, state, and tribal requirements for an American Indian client. The American Indian Probate Reform Act of 2005 (AIPRA)1 is the most recent federal statute. AIPRA is intended to confront the problems of fractionated Indian trust land by preventing further fractionation. The Act creates a federal probate code governing the testamentary and intestate descent and distribution of trust lands, as well as creating purchase options at probate and partitioning through forced sales outside of probate. AIPRA also limits who is eligible to inherit interests in trust land. It is important for state courts and practitioners to learn about AIPRA and what constitutes property held in trust for American Indians by the federal government, in order to appropriately meet client needs. Some of the important highlights of AIPRA:
- Applies to trust land and trust personalty interests
- Encourages will writing/estate planning, as AIPRA limits who is allowed to inherit trust property without a will
- Limits heirs and devisees to “eligible heirs”
- Encourages tribes to enact Tribal Probate Codes as the American Indian Probate Reform Act leaves many land issues unresolved
- IRA (Indian Reorganization Act) lands cannot be transferred out of trust or restricted status.2 The gift will lapse and pass pursuant to the residuary clause in the will or by intestate succession rules
The Indian Land Tenure Foundation is a good resource for information regarding American Indian land issues to be considered when estate planning for an American Indian client. Another resource is the Minnesota American Indian Bar Association (MAIBA). MAIBA has partnered with Minnesota Continuing Legal Education to provide courses on a variety of American Indian law topics, including understanding AIPRA, at its annual CLE event.
Islamic Considerations with Probate
The intent of this section is to present Islamic elder law generally, and not the different ways practicing Muslims culturally carry out elder care or estate planning. As with any religion, there are going to be cultural differences in the way elders are treated, the protections afforded to them, and what elder care means. This section breaks down Islamic elder law regarding estate planning as dictated in the Qu’ran and supported by quotations by the Prophet Muhammed (PBUH; peace be upon him). There will be differences in practice based upon marital status or family structure in passing property. There will also be differences between the guidance of religion and the laws of the secular state, some of which are mentioned here.
The Qu’ran
It is most important to understand that under Islam, money is not yours. All money afforded to you has been given to you by Allah and this makes the series of successions even more important. Islamic inheritance is known as “al- fara’id” in the Qu’ran.3 The first verse involving inheritance in Islam, excluding caring for orphans, is “Offspring and Parents.”
Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children—you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah.4
It is important to understand the context behind the specifications. Under this provision, property passes along male lines because it is viewed as the males’ duty to take care of their mothers, wives, sisters, nieces, etc. Under the same view, the inheritance of a spouse also varies depending upon the familial circumstances. If a male were to pass without children, the female is to take one-quarter of the inheritance and if there are children, the female is to take an eighth of the estate. If a female were to pass without children, the male inherits one-half of the estate and if there are children, the male will inherit one-quarter.5
This can present a challenge under Minnesota’s spousal-share statute.6 Per the statute, and depending on the length of a marriage, a surviving spouse may take up to one-half of the augmented estate. Those who practice estate planning with use of an Islamic will in the State of Minnesota can use a spousal-share waiver (waiver of right to elect and others) to bypass the requirements of the spousal-share provision.7 This is a purely voluntary process for the parties, specifically the party who is not going to be the taker under the will, and requires the parties to enter into a contract. If the parties choose to do this prior to marriage, the waiver must be made pursuant to the legal requirements of antenuptial and postnuptial contracts.8
Also important is the burial of bodies as instructed in the Qu’ran. The specifics regarding burial of a body come from the story of Cain and Abel. Upon killing his brother, Cain was unsure what do with the body, “[t]hereupon Allah sent forth a raven who began to scratch the earth to show him how he might cover the corpse of his brother.”9This is the verse relied upon by Muslims regarding the burial of a body, as opposed to cremation or other forms of funerary rights. Due to the above-referenced verse, embalming is not utilized in Islam, which can present problems as the State of Minnesota requires embalming in most circumstances. However, an exception to this rule—waiving the embalming requirement if the body is buried within 72 hours of death—allows most Muslims to avoid the embalming requirement.10
Not all burial rites are mentioned in the Qu’ran, however, and the exact manner of burial and the customs regarding the disposition of the body may vary by region and/or country. It is a common practice for Muslim burials to be natural or green, wherein the body is buried with nothing more than an untreated wooden board and plain sheets with a covering of soil, ensuring that all materials will decompose along with the body. Minnesota Statute § 149A.72, subd. 8 specifies that some local ordinances might require an outer burial container so that the grave will not sink. It is, therefore, recommended that a practitioner check with local ordinances when advising clients.
The Prophet Muhammed (PBUH)
The Prophet (PBUH) strongly believed inheritance and specifications of the estate planning is essential to the practice of Islam. “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.”11 This shows the importance in not only passing the property but also in having a written instrument outlining the specifications.
As related in the above-referenced surahs (verses), the property is to be passed only after the settlement of all debts. In fact, it is so important to first settle the debts of the person who passed that the Prophet (PBUH) spoke of it quite often. “A believer’s soul remains in suspense (cannot enter Paradise) until all his debts are paid off.”12“Procrastination (delay) in repaying debts by a wealthy person is injustice.”13
There are further requirements for Muslims after death, including specific funerary practices regarding wrapping the body, burying the body in the ground, and having the funeral rites as soon as practical. It is important for the Islamic will or estate plan to detail the wishes of the deceased when it comes to how they want their funeral conducted and to have those wishes follow the laws of Islam. Practitioners should also follow the laws of the secular state in which they are practicing. The rites of washing and then of wrapping the body in sheets are among the most important in Islam, and it is said:
Allah’s Messenger (PBUH) came to us and we were giving a bath to his (dead) daughter and said, “Wash her three, five, or more times with water and Sidr and sprinkle camphor on her at the end; and when you finish, notify me.” So when we finished, we informed him and he gave us his waist-sheet and told us to shroud her in it. Aiyub said that Hafsa narrated to him a narration similar to that of Muhammad in which it was said that the bath was to be given for an odd number of times, and the numbers 3, 5, or 7 were mentioned. It was also said that they were to start with the right side and with the parts which were washed in ablution.14
It is important to keep in mind there are many regional and cultural differences, as well as clarifications through fatwas (religious declarations by learned clerics) and the council on Fiqh (group of clerics), which help guide Muslims in the modern world in estate planning and elder care. This article utilizes only the Qu’ran and the Hadith (quotes and stories of the Prophet (PBUH)), as they are the primary sources. The concepts presented here provide some basics for consideration when representing an Islamic elder in relation to estate planning.
The Hmong Cultural Touchpoints with Probate Issues
Estate planning for Hmong clients may be complicated by several traditional inheritance and cultural practices. Hmong practice a form of animism, which emphasizes ancestral worship and maintaining household spirits that influence everyday life. Additionally, ancestors watch over and guide their living descendants. Hmong believe wealth, health, and fame are intertwined with the spiritual world—all of which can be enhanced by burying one’s parents in locations where the Feng Shui (mem toj) flows correctly—which deemphasizes direct inheritance.
Hmong do not have a word for a “will.” Hmong do not follow primogeniture; instead, the youngest son, referred to as “son to hold the spirits” (Tub Ncej dab), inherits the parents’ assets (i.e., household tools, house, land, etc.) because he will care for them in their old age. All elder sons are regarded as “village sons” (Tub zej tub zos) because they must make their own way in the world. Hmong place additional value on sons because only sons carry on the family name and continue the unique religious practices of the family. Hmong have a saying—hnov dej nrov tsis tau dej haus pom taws qhuav tsis tau taws rauv, which translates, literally, as “hearing water but unable to find the source and seeing fire but unable to find a fuel source” and, figuratively, means without sons there is no one to care for one when one is old.
Hmong place less value upon daughters (ntxhais qhua) because they functionally depart the family when they marry. A daughter must adopt the traditions and practices of her husband’s family. She cannot return to her parents’ household, and her parents’ household spirits cease to recognize her. A divorcee must not die in her parents’ home. Alternately, the death of either parent in a married daughter’s home would disrupt the spirits of that household, resulting in ill health and suffering for its residents.
Hmong do not adopt male children, unless the couple do not have any children of their own. Any male child, even an orphan, may be called back to his original family via a “spiritual calling” (dab tom); therefore, such an adoption would inevitably fail to preserve a family’s unique practices. Therefore, male children, even the youngest from a previous marriage, do not inherit from their mother nor do they share in the funeral costs. Instead, in a blended family, the current husband’s youngest son will inherit. Since girls do not carry on the family’s spiritual practices, they are readily adopted. Whether accepted into a new family or accepted by a new stepfather, a girl can be welcomed into a new household by a “soul calling ceremony” (hu plig). Traditionally, Hmong adoption is the hu plig ceremony. Hmong do not have a written formal adoption process. A child is adopted by performing a hu plig.
Hmong marriages performed before emigrating are typically not legal marriages because they occurred outside the government record-keeping practices of their resident nations. Hmong marriages performed domestically may or may not conform with legal requirements. Since Minnesota does not recognize common law marriages, researching and identifying the precise nature of a Hmong client’s marriage may have significant inheritance and family law ramifications. Additionally, Hmong may practice polygamy; either as a remedy where the first wife fails to birth a son or as a status symbol within the community. When a Hmong marriage occurs, the husband’s family performs a soul calling ceremony. If the bride has any daughters from a previous marriage, they will also require a soul calling ceremony, which severs their relationship with the biological father. Conversely, there is no ceremony or requirement for the bride to establish a relationship with the husband’s pre-existing children if any.
Traditionally, a Hmong funeral is a three-day event, preceded by several days of preparation called zov hmo. The surviving family bears the cost of housing and feeding members of the community engaged in these preparations. During the funeral, many rites are performed, and each person who performs a rite must be compensated. The final cost of a Hmong funeral may exceed $20,000. Some decedents may have enough saved for their funerals, but if not, sons—only sons—are expected to equitably offset any deficit.
Prior to the 1970s, Hmong lived in the high mountains of Laos with little access to modern technology. As the Hmong were enlisted in the Secret War (the covert war in Laos during the Vietnam War), they received a wide assortment of new technology from their allies. Some technology, such as cassette recorders, allowed elders to preserve oral traditions as never before. Additionally, elders could now record their last wishes, beginning a shift in how assets were distributed. The youngest son continued to inherit the home, but the division of remaining wealth expanded to all sons without regard for equal division.
The majority of Hmong Americans continue to practice their animism faith. However, adherence to these traditions as they impact secular life may differ depending upon the time of their emigration from Laos.
Mature adult Hmong immigrants, who arrived in their 30s and 40s, have acquired some wealth and are most likely to demonstrate a rigid adherence to tradition. Advising members of this generation may require greater research and understanding of the aforementioned traditions. Any marriage must be researched for legal sufficiency, and any assignment of the testator’s funds to funeral expenses should be clear and express.
Teenaged and young adult immigrants continue to share most cultural norms and beliefs. However, they are more likely to divide wealth among all their sons, or even daughters. Their adherence to Hmong traditions may still preclude legally sufficient marriages.
Child immigrants and domestically born Hmong may continue to adhere to cultural norms and beliefs in more varying degrees. This group is highly educated, Americanized, and likely to recognize and accept standard estate strategies. Legally sufficient marriages are more common but may still warrant investigation.
Overall, Hmong inheritance practices and family relationships may appear idiosyncratic to many attorneys. These differences may require additional emphasis upon clear, precise language to eliminate ambiguities that do not arise for other clients. Because of the cultural traditions outlined above, Hmong clients are more likely to request or require exclusionary language for unrecognized descendants or specific individuals which may require additional care by attorneys. Moreover, the doctrine of equitable adoption may require further research. Ongoing concerns about legally sufficient marriages may impact homestead provisions. Finally, Hmong clients may wish to mitigate the costs of elaborate Hmong funerals; any deviation from Hmong funeral tradition should be captured in a separate writing.
For more information on Hmong traditions and cultural preferences, visit hmong18council.org
Many cultures and religious groups have immigrated to Minnesota in the past. The state’s original residents and newest arrivals have rich and often unique beliefs and practices that impact how a successful attorney helps address the client’s needs within the legal framework established by the state. Enhancing your awareness of these important considerations will ensure your client is properly represented and the client’s wishes are empowered.
