The Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation
TITLE VI - UTE INDIAN PROBATE CODE
CHAPTER I. GENERAL PROVISIONS
§6-1-1. Jurisdiction.The Ute Indian Tribal Court shall have jurisdiction to appoint administrators, determine heirs, appoint executors, determine the validity of wills, and to probate and distribute the estates and wills of any member of the Ute Indian Tribe with respect to non-trust personal property and non-restricted or non-trust real property located on the Reservation. The Tribal Court shall exercise such functions over restricted or trust property to the greatest extent allowed by law.
relating to decedent's estates shall be liberally construed and applied
to give effect to the underlying policy of distributing a decedent's property
according to the decedent's intent where there is a valid will manifesting
such intent, or according to the provisions of this Probate Code where
there is not a valid will.
The law of
the State of Utah relative to decedent's estates may be referred to and
followed in situations where this Probate Code provides no guidance regarding
the handling of decedents' estates, but only so far as such law is not
inconsistent with the provisions and spirit of this Probate Code.
§6-1-3. Reference to Other Law.
has been perpetrated in connection with any proceeding or in any statement
filed under this Probate Code or if fraud is used to avoid or circumvent
the provisions or purposes of this Probate Code, any person injured thereby
may obtain appropriate relief against the perpetrator of the fraud including
restitution from any person (other than a bona fide purchaser) benefiting
from the fraud, whether innocent or not. Any proceeding must be commenced
within 2 years after the discovery of the fraud, but no proceeding may
be brought against one not a perpetrator of the fraud later than 5 years
after the time of commission of the fraud. This section has no bearing
on remedies relating to fraud practiced on a decedent during his lifetime
which affect the succession of his estate.
§6-1-4. Effect of Fraud and Evasion.
under this Code the rules of evidence in the trial court are applicable
unless specifically displaced by the Probate Code. In addition, the following
rules relating to determination of death and status are applicable:
§6-1-5. Evidence as to Death or Status.
(2) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;
(3) A person who is absent for a continuous period of 5 years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
provided to the contrary in this Probate Code or unless inconsistent with
its provisions, the Ute Indian Rules of Civil Procedure including the
rules concerning vacation of order and appellate review govern formal
proceedings under this Probate Code.
§6-1-6. Practice in Court.
shall keep a file for each decedent of all documents filed with the Court
under this Probate Code and shall keep a numerical index of all such estates
to facilitate access to such records. Upon payment of the fee not to exceed
fifty cents per copy page), the Clerk shall issue certified copies of
any document or paper so filed.
§6-1-7. Records and Certified Copies.
demanded, a party is entitled to a trial by jury in any proceeding in
which any genuine controverted question of fact arises, or the trial judge
may order a jury trial on any such issue on his own motion. Otherwise
all proceedings under this Probate Code shall be handled by a trial judge
or the Clerk, as is appropriate.
§6-1-8. Jury Trial.
specifically provided in this Probate Code, every document filed with
the Court under this Probate Code shall be deemed to include an oath,
affirmation, or statement to the effect that its representations are true
as far as the person executing or filing it knows or is informed, and
the penalties for penury shall follow deliberate falsification therein.
§6-1-9. Oath or Affirmation on Filed Documents.
(1) If notice
of a hearing on any petition or other matter is required, and except for
specific notice requirements as otherwise provided, the petitioner shall
cause notice of the time and place of hearing of any petition to be given
to any interested person or his attorney if he has appeared by attorney
or requested that notice be sent to his attorney. Notice shall be given:
(a) by mailing a copy thereof at least 14 days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known; or
(b) by delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or
(c) if the address, or identity of any person is not known and cannot be ascertained by reasonable diligence, by posting a copy of the notice in at least three (3) conspicuous public places on the Reservation at least 14 days before the time set for the hearing.
(3) Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding.
(4) A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
A person (or
his personal representative) who is an heir, devisee, person succeeding
to a renounced interest, beneficiary under a testamentary instrument or
person designated to take pursuant to a power of appointment exercised
by a testamentary instrument may renounce in whole or in part the succession
to any property or interest therein by filing a written instrument with
the Court not later than 6 months after the decedent's death or the time
at which it is determined that the person is entitled to take property
if such is not known at the time of death. The instrument shall (i) describe
he property or part thereof or interest therein renounced, (ii) be signed
by the person renouncing and (iii) declare the renunciation and the extent
thereof. Upon proper renouncement, the interest renounced passes as if
the renouncing person had predeceased the decedent or donee.
§6-1-11. Renunciation of Succession..
§6-1-12. Effect of Divorce, Annulment, and Decree of Separation.
who is divorced from a decedent or whose marriage to the decedent has
been annulled is not a surviving spouse unless, by virtue of a subsequent
marriage, he is married to the decedent at the time of death. A decree
of separation which does not terminate the status of husband and wife
is not a divorce for purposes of this Probate Code.
§6-1-13. Effect of Homicide on Intestate Succession, Wills, Joint Assets, Life Insurance and Beneficiary Designations.
(2) Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.
(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who criminally and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(4) Any other acquisition of property or interest by the killer shall be heated in accordance with the principles of this section.
(5) A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Court may determine by a preponderance of evidence whether the killing was criminal and intentional for purposes of this section.
CHAPTER II. INTESTATE SUCCESSION
§6-2-1. Intestate Estate.When any member of the Tribe dies without disposing of all or part of his property by a valid will, all such property not so disposed will pass in accordance with the laws of Intestate Succession of the State of Utah. See Utah Code Annotated, Title 74, Chapter 4.
CHAPTER III. PROBATE OF INTESTATE ESTATE
§6-3-1. Petition.(1) When any member of the Tribe dies leaving an intestate estate subject to the jurisdiction of the Ute Indian Tribal Court, any person claiming to be an heir of the decedent, or the Tribe, may petition the Court for a determination of the heirs of the decedent and for the distribution of such property. The petition shall contain the names and addresses of all persons known to the petitioner who may be entitled to share in the distribution of the estate.
(2) Whenever there is a valid will probated by the Court which does not dispose of all of the decedent's property, a determination of the heirs entitled to such property and its distribution shall be made by the Court at or before the time the remainder of the estate is distributed without the necessity of a separate petition and proceeding.
§6-3-2. Administrator of Intestate Estate.
an executor is appointed over a decedent's property which is disposed
of by a valid will, such person shall likewise assume authority over
the decedent's interstate estate and administer it with the rest of
the decedent's estate.
(2) Whenever it reasonably appears that such is necessary to the preservation, administration and/or distribution of a decedent's intestate estate, the Court shall appoint an administrator over the estate. It shall not be necessary to appoint an administrator if the value of the decedent's property appears to be less than $1,000.00 in value, no problems in administering the estate are foreseen, and no one requests that one be appointed.(3) The following persons, if legally competent, shall be afforded priority in order of their listing for appointment as administrator: the surviving spouse, children in descending order of age, other blood relatives in order of their closeness of relationship; any adult tribal member.
(4) The duties of the administrator shall be:
(a) to take possession of all property of the decedent subject to this Probate Code;
(b) within one month of his appointment make an inventory and appraisement of such property and file it with the Court;
(c) determine and file with the Court a list of all known relatives of the decedent, their ages, and their relationship to the decedent;
(d) subject to the approval of the Court ascertain and pay all of the debts and legal obligations of the decedent;
(e) prosecute and defend actions for or against the estate;
(f) distribute the estate in accordance with the order of the Court and file receipts with the Court showing distribution of the estate.
§6-3-3. Appointment of Administrator.
(1) Upon receipt of a petition to administer an intestate estate, the clerk shall schedule a hearing at which an administrator will be appointed. Said hearing shall be scheduled far enough in advance to allow the required notice to be made.
(2) Notice of the hearing shall be made by the petitioning party or by the Clerk if the Tribe is the petitioning party and shall also be posted in a conspicuous place in the Tribal Administration Building.(3) The Court shall determine who is the proper person to appoint as Administrator, and if such person manifests his willingness to serve, order his appointment as administrator.
§6-3-4. Oath of Administrator; Letters of Administration.
his appointment as administrator, the person appointed shall take an
oath to be prescribed by the Court to the effect that he will faithfully
and honestly administer the estate.
(2) Upon taking the oath and filing the bond, if any is required, the administrator shall be granted Letters of Administration as proof of his appointment.
of the estate or the Clerk if no administrator is appointed shall cause
notice to creditors to be posted in at least three conspicuous places
on the Reservation and published at least twice in a publication of general
distribution on the Reservation. Said notice shall state that creditors
have 90 days from the date of the first publication of the notice to present
their claims to the administrator or Clerk and that only those claims
so presented shall be paid by the estate.
§6-3-5. Notice to Creditors.
to creditors of the decedent shall be made by the administrator only upon
the order of the Court after determining the validity of the claims by
affidavit or personal testimony of the claimant.
§6-3-6. Payment of Creditors.
(2) All just claims of creditors allowed by the Court shall be paid before distribution of the estate but shall be paid only after payment of the family allowance and homestead allowance as provided herein.
Prior to the
distribution of every estate for which an administrator has been appointed,
such administrator shall render an accounting to the Court, for its approval,
of all receipts and disbursements from the estate, showing the present
status of the estate and that it is ready for distribution, and also showing
the computation of any attorney's and/or administrator's fees involved
for which approval for payment is sought. In estates in which no administrator
is appointed, the Clerk shall account to the Court for all transactions
relating to the estate.
§6-3-8. No Taker.
If there is no taker under the provisions of this part, the intestate estate passes to the Tribe.
If a person
dies intestate as to all his estate, property which he gave in his lifetime
to an heir is heated as an advancement against the latter's share of the
estate only if declared in a contemporaneous writing by the decedent or
acknowledged in writing by the heir to be an advancement. For this purpose,
the property advanced is valued as of the time the heir came into possession
or enjoyment of the property or as of the time of death of the decedent,
whichever first occurs. If the recipient of the property fails to survive
the decedent, the property is not taken into account in computing the
interstate share to be received by the recipient's issue, unless the declaration
or acknowledgment provides otherwise.
A debt owed
to the decedent is not charged against the intestate share of any person
except the debtor. If the debtor fails to survive the decedent, the debt
is not taken into account in computing the intestate share of the debtor's
§6-3-10. Debts to Decedent.
§6-3-11. Status of Heirs.
is disqualified to take as an heir because he or a person through whom
he claims is not a member of the Ute Indian Tribe or because he does
not live on the Reservation.
CHAPTER IV. WILLS
§6-4-1. Who May Make a Will.
Any person 18 or more years of age who is of sound mind may make a will.
provided for holographic wills, every will shall be in writing signed
by the testator or in the testator's name by some other person in the
testator's presence and by his direction, and shall be signed by at least
two (2) persons each of whom witnessed either the signing or the testator's
acknowledgment of the signature or of the will.
A will which
does not comply with the next preceding section is valid as a holographic
will, whether or not witnessed, if the signature and the material provisions
are in the handwriting of the testator.
§6-4-3. Holographic Will.
will may, at the time of its execution or at any subsequent date, be made
self-proved, by the acknowledgment thereof by the testator and the affidavits
of the witnesses, each made before a notary public or Tribal judge and
evidenced by the notary or judge's certificate, under official seal, attached
or annexed to the will in form and content substantially as follows:
§6-4-4. Self-Proved Will.
THE STATE OF_______________________________________________
and ___________________________________________, the testator and the witnesses,
respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly or directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at the time 18 or more years of age, of sound mind and under no constraint or undue influence.
Subscribed, sworn to and acknowledged before me by _________________________________,
the testator, and subscribed and sworn to before me by _____________________________ and
witnesses, this ____________________________
day of _________________, 19____.
(Official capacity of officer)
§6-4-5. Who May Witness.
(1) Any person generally competent to be a witness may act as a witness to a will.
(2) A will or any provision thereof is not invalid because the will is signed by an interested witness.
will is valid if executed in compliance with this Probate Code or if its
execution complies with the law at the time of execution of the place
where the will is executed, or of the law of the place where at the rime
of execution or at the time of death the testator is domiciled, has a
place of abode or is a national.
§6-4-6. Choice of Law as to Execution.
A will or
any part thereof is revoked:
§6-4-7. Revocation by Writing or by Act.
(2) By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
§6-4-8. Revocation by Divorce; No Revocation by Other Changes of Circumstances.
executing a will, the testator is divorced or his marriage annulled,
the divorce or annulment revokes any disposition or appointment of property
made by the will to the former spouse, any provision conferring a general
or special power of appointment on the former spouse and any nomination
of the former spouse as executor, trustee, conservator, or guardian,
unless the will expressly provides otherwise. Property prevented from
passing to a former spouse because of revocation by divorce or annulment
passes as if the former spouse failed to survive the decedent, and other
provisions conferring some power or office on the former spouse are
interpreted as if the spouse failed to survive the decedent. If provisions
are revoked solely by this section, they are revived by testator's remarriage
to the former spouse. A decree of separation which does not terminate
the status of husband and wife is not a divorce for purposes of this
section. No change of circumstances other than as described in this
section revokes a will.
(1) If a second
will which, had it remained effective at death, would have revoked the
first will in whole or in part, is thereafter revoked, the first will
is revoked in whole or in part unless it is evident from the circumstances
of the revocation of the second will or from testator's contemporary or
subsequent declarations that he intended the first will to take effect
§6-4-9. Revival of Revoked Will.
(2) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
in existence when a will is executed may be incorporated by reference
if the language of the will manifests this intent and describes the writing
sufficiently to permit its identification.
§6-4-10. Incorporation by Reference.
A will may
dispose of property by reference to acts and events which have significance
apart from their effect upon the dispositions made by the will, whether
they occur before or after the execution of the will or before or after
the testator's death. The execution or revocation of a will of another
person is such an event.
§6-4-11. Events of Independent Significance.
who does not survive the testator by 120 hours is treated as if he predeceased
the testator, unless the will of the decedent contains some language dealing
explicitly with simultaneous deaths or deaths in a common disaster, or
requiring that the devisee survive the testator or survive the testator
for a stated period in order to take under the will.
§6-4-12. Requirement That Devisee Survive Testator by 120 Hours.
§6-4-13. Simultaneous Death.
(1) Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise.
(2) Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is to sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
(3) Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
(4) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
(5) These provisions on simultaneous death shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, deed or contract of insurance.
§6-4-14. Rules of Construction and Intention.
The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this Probate Code apply unless a contrary intention is indicated by the will.
§6-4-15. Construction That Will Passes All Property; After-Acquired Property.
A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.
§6-4-16. Anti-Lapse; Deceased Devisee; Class Gifts.
If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.
§6-4-17. Failure of Testamentary Provision.
(1) Except as provided in the next preceding section if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(2) Except as provided in the next preceding section if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
§6-4-18. Exercise of Power of Appointment.
A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
§6-4-20. Construction of Generic Terms to Accord With Relationships as Defined for Intestate Succession.
Half-bloods, adopted persons and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so heated by the father.
a testator gave in his lifetime to a person is treated as a satisfaction
of a devise to that person in whole or in part, only if the will provides
for deduction of the lifetime gift, or the testator declares in a contemporaneous
writing that the gift is to be deducted from the devise or is in satisfaction
of the devise, or the devisee acknowledges in writing that the gift is
in satisfaction. For purpose of partial satisfaction, property given during
lifetime is valued as of the time the devisee came into possession or
enjoyment of the property or as of the time of death of the testator,
whichever occurs first.
§6-4-21. Ademption by Satisfaction.
CHAPTER V. PROBATE OF WILLS
§6-5-1. Petition for Letters Testamentary.
A petition for Letters Testamentary may be made by any person having possession of a decedent's will. The petition must be in writing, signed by the petitioner, and shall state the basis for the Court's jurisdiction, the names of the heirs of the decedent, if known, and the name or names of any person specified in the will as executor and the address of such person if known. The original copy of the will shall be submitted to the Court with the petition.
§6-5-2. Qualification of Executor.
The Court shall appoint an executor to administer the estate. The executor shall be a competent adult Tribal member and preference shall be given, if such persons are otherwise qualified, to the person named in the will as such, followed by the surviving spouse or child of the decedent with preference given in descending order of age.
§6-5-3. Appointment of Executor.
(1) Upon receipt of a petition for Letters Testamentary, the clerk shall schedule a hearing at which an executor will be appointed and Letters Testamentary authorized. The hearing shall be scheduled so that adequate notice to interested persons can be made.
(2) Notice of the hearing shall be made by the petitioning party to all persons named as takers under the will, and to all known heirs of the decedent if different from the named takers, and also posted in a conspicuous place in the Tribal Administration Building.
(3) At the hearing, the Court shall first determine the validity of the decedent's will and then appoint an executor to administer the estate according to the terms of this Probate Code and the decedent's will.
(4) Letters Testamentary shall be granted to the person appointed as executor upon his taking an oath, to be prescribed by the Court, to the effect that he will faithfully and honestly administer the estate, and upon his filing the bond, if required.
§6-5-4. Duties of Executor, Bond.
The duties of the executor shall be the same as those prescribed in this Probate Code for the Administrator of an intestate estate, and he shall file a bond in a like manner and subject to the same exceptions.
Notice to creditors, determination of the validity of claims, and payment of claims shall be handled as prescribed for intestate estates.
Prior to the distribution of the estate remaining after payment of all just claims and priority payments, the executor shall submit to the Court for approval an accounting of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for distribution, and also showing the computation of any attorney's and/or executor's fees involved for which approval for payment is sought.
§6-5-7. Distribution; Closing Estate.
(1) When it is made to appear to the Court that an estate is ready to be distributed, the Court shall order such distribution according to the provisions of the decedent's will or the rules of intestate succession whichever is applicable, and according to the rules set forth in this Probate Code.
(2) The estate shall be closed and the personal representative of the estate dismissed and his bond, if any, released upon filing with the Court receipts showing that the estate is fully distributed, and also upon filing the personal representative's affidavit that the estate is fully administered and ready to be closed.
§6-5-8. Distribution; Order in Which Assets Appropriated; Abatement.
(1) Except as provided in subsection (2)and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (a) property not disposed of by the will; (b)residuary devises; (c) general devises;(d)specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(2) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (1), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(3) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
§6-5-9. Property Discovered After Estate Closed.
An estate may be reopened whenever necessary to dispose of a decedent's property discovered after his estate has been closed. The Court shall order distribution of the property to the person or persons entitled thereto after making whatever orders appear necessary to assure a just participation of the after discovered property in the expenses of the estate.
§6-5-10. Personal Representative and Attorney's Fees;
(1) An administrator or executor may elect to receive a fee of 5% of the value of the gross estate but not less than $50.00 to be paid from the estate prior to final distribution of the estate.
attorney who represents the personal representative of an estate for
purposes of administering the estate may be paid from the estate a fee
of 5% of the gross estate, but not less than $50.00. A greater amount
may be approved upon a showing of extraordinary service to the estate.
CHAPTER VI. FAMILY RIGHTS
§6-6-1. Right to Elective Share.
If a married Tribal member domiciled on the Reservation dies, the surviving spouse has a right to elect to take an elective share of one-third of the estate of the decedent, less funeral and administration expenses, family allowance and enforceable claims against the estate, plus the value of all property in excess of $1,000.00 transferred by the decedent to any person other than the surviving spouse in the three years preceding his death to which the surviving spouse has not joined by written consent.
§6-6-2. Right of Election Personal to Surviving Spouse.
The right of election of the surviving spouse may be exercised only during his lifetime by him. In the case of an incompetent or protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his probable life expectancy.
§6-6-3. Waiver of Right to Elect and of Other Rights.
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contact, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of " all rights" (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
§6-6-4. Proceeding for Elective Share; Time Limit.
surviving spouse may elect to take his elective share in the estate
by filing in the Court and mailing or delivering to the personal representative
a petition for the elective share within 6 months after the publication
of notice to creditors for filing claims which arose before the death
of the decedent. The Court may extend the time for election as it sees
fit for cause shown by the surviving spouse before the time for election
(2) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the estate whose interests will be adversely affected by the taking of the elective shares.
surviving spouse may withdraw his demand for an elective share at any
time before entry of a final determination by the Court.
(4) After notice and hearing, the Court shall determine the amount of the elective share and shall order its payment from the assets of the estate or by contribution as appears appropriate under the following section. If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
(5) The order or judgment of the Court may be enforced as necessary in a suit for contribution or payment.
§6-6-5. Effect of Election on Benefits by Will.
election by a surviving spouse does not affect the right of such spouse
to participate in a family allowance but the value of any part of the
estate passing to the surviving spouse by testate or intestate succession
shall, unless renounced by the spouse in his petition, be counted against
his elective share.
(2) When an election to take an elective share has been made and there is insufficient property in the estate which is not specifically disposed of to pay the elective share, liability for payment of the elective share shall be equitably apportioned among the other recipients of the estate in proportion to the value of their interests therein.
(3) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time transferred.
§6-6-6. Omitted Spouse.
the provisions of §6-6-1 of this Code, if a testator fails to provide
by will for his surviving spouse who married the testator after the
execution of the will, the omitted spouse shall receive the same share
of the estate he would have received if the decedent left no will unless
it appears from the will that the omission was intentional or the testator
provided for the spouse by transfer outside the will and the intent
that the transfer be in lieu of a testamentary provision is shown by
statements of the testator or from the amount of the transfer or other
(2) In satisfying a share provided by this section, the devises made by the will abate as provided in the section of this Probate Code which concerns "abatement."
§6-6-7. Pretermitted Children.
(1) If a testator fails to provide in his will for any of his children living or born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(b) when the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(c) the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(3) In satisfying a share provided by this section, the devises made by the will abate as provided in the section of the Probate Code which concerns "abatement."
spouse of a decedent who was domiciled on the Reservation is entitled
to a homestead allowance of $2,500.00. If there is no surviving spouse,
each minor child and each dependent child of the decedent is entitled
to a homestead allowance amounting to $2,500.00 divided by the number
of minor and dependent children of the decedent. The homestead allowance
is exempt from and has priority over all claims against the estate. Homestead
allowance is in addition to any share passing to the surviving spouse
or minor or dependent child by the will of the decedent unless otherwise
provided, by intestate succession or by way of elective share.
§6-6-8. Homestead Allowance.
to the homestead allowance, the surviving spouse of a decedent who was
domiciled on the Reservation is entitled from the estate to value not
exceeding $2,500.00 in excess of any security interests therein in household
furniture, automobiles, furnishings, appliances and personal effects.
If there is no surviving spouse, children of the decedent are entitled
jointly to the same value. If encumbered chattels are selected and if
the value in excess of security interests, plus that of other exempt property,
is less than $2,500.00, or if there is not $2,500.00 worth of exempt property
in the estate, the spouse or children are entitled to other assets of
the estate, if any, to the extent necessary to make up the $2,500.00 value.
Rights to exempt property and assets needed to make up a deficiency of
exempt property have priority over all claims against the estate, except
that the right to any assets to make up a deficiency of exempt property
shall abate as necessary to permit prior payment of homestead allowance
and family allowance. These rights are in addition to any benefit or share
passing to the surviving spouse or children by the will of the decedent
unless otherwise provided, by intestate succession, or by way of elective
§6-6-9. Exempt Property.
to the right to homestead allowance and exempt property, if the decedent
was domiciled on the Reservation, the surviving spouse and minor children
whom the decedent was obligated to support and children who were in fact
being supported by him are entitled to a reasonable allowance in money
out of the estate for their maintenance during the period of administration,
which allowance may not continue for longer than one year if the estate
is inadequate to discharge allowed claims. The allowance may be paid as
a lump sum or in periodic installments. It is payable to the surviving
spouse, if living, for the use of the surviving spouse and minor and dependent
children; otherwise to the children, or persons having their care and
custody; but in case any minor child or dependent child is not living
with the surviving spouse, the allowance may be made partially to the
child or his guardian or other person having his care and custody, and
partially to the spouse, as their needs may appear. The family allowance
is exempt from and has priority over all claims but not over the homestead
§6-6-10. Family Allowance.
The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates his right to allowances not yet paid.
If the estate
is otherwise sufficient, property specifically devised is not used to
satisfy rights to homestead and exempt property. Subject to this restriction,
the surviving spouse, the guardians of the minor children, or children
who are adults may select property of the estate as homestead allowance
and exempt property. The personal representative may make these selections
if the surviving spouse, the children or the guardians of the minor children
are unable or fail to do so within a reasonable time or if there are no
guardians of the minor children. The personal representative may execute
an instrument or deed of distribution to establish the ownership of property
taken as homestead allowance or exempt property. He may determine the
family allowance in slump sum not exceeding $3,600.00 or periodic installments
not exceeding $300.00 per month for one year, and may disburse funds of
the estate in payment of the family allowance and any part of the homestead
allowance payable in cash. The personal representative or any interested
person aggrieved by any selection, determination, payment, proposed payment,
or failure to act under this section may petition the Court for appropriate
relief, which relief may provide a family allowance larger or smaller
than that which the personal representative determined or could have determined.
Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray ReservationReceived:
§6-6-11. Source, Determination and Documentation.