Kickapoo Tribal Code - Probate Code

The Kickapoo Probate Code can be found in Chapter 6 of the Tribal Codes. The purpose of this code is to ensure that the property of decedents (individuals who have died) passes to the rightful heirs or beneficiaries. 

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Under the Probate Code, a valid will can be made by any person who is 18 or more years of age and who is of sound mind

In order to be valid, a self-proved will must: 

  • Be put in writing and signed by the testator, or in the testator’s presence and at the testator’s direction signed by another person; and
  • Be signed by at least two (2) witnesses who either witnessed the signing of the will, or the testator’s acknowledgment of the signature and direction to do so.

A holographic will is a will which does not comply with the requirements above, and can be valid, whether or not witnessed, if the signature and material provisions of the will are in the handwriting of the testator. 

An oral will is a will that does not comply with the requirements above is valid under custom and tradition if the testator orally made known the testator’s last will in the traditional matter. Under Section 6.2.4 of the Probate Code, the Court shall hear testimony on the credibility and manner of an oral will. An oral will cannot revoke a prior written will.

A will or any part of a will is revoked:

  • When a subsequent valid written will, codicil (amendment, supplement, or addition to a will that may explain, modify, add to, subtract from, qualify, alter, restrain, or revoke provisions in an existing will), or other instrument which revokes the prior will in whole or in part expressly or by inconsistency; or
  • 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 the testator’s presence and at the testator’s direction.

Where any part of the estate is not effectively disposed of by the decedent’s will, the unidentified property will pass to the decedent’s heirs as prescribed in Section 6.3 of the Probate Code. This disposition of property is known as intestate succession.

Under the rules of intestate succession, the surviving spouse:

  • Is entitled to the entire intestate estate if there is no surviving issue (children, grandchildren, lineal descendants) or parent of the decedent;
  • Is entitled to the first $10,000, plus one-half of the balance of the intestate estate if there is no surviving issue, but thee decedent is survived by a parent or parents;
  • Is entitled to the first $10,000, plus one-half of the balance of the intestate estate if there are surviving issue (all of whom are issue of the survived spouse). 
  • Is entitled to one-half of the intestate estate if there are surviving issue, and one or more of the issue are not issue of the surviving spouse.

Estate property that is not passing to the surviving spouse as described above (or if there is no surviving spouse) passes as follows:

  • To the issue (children, grandchildren, lineal descendants) of the decedent. If they are all of the same degree of kinship, they take equally. If there are unequal degrees of kinship, those of more remote degree take by representation (proportionally);
  • If there is no surviving issue, to the decedent’s parent or parents equally;
  • If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
  • If there is no surviving issue, parent or issue of a parent, and the decedent is survived by one or more grandparents or issue of grandparents, then half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent. The other half passes to the maternal relatives in the same manner.

If there is no taker under the preceding conditions, the intestate estate passes to the Tribe. 

The rules for Probate of wills fall under Section 6.7 of the Kickapoo Traditional Tribe of Texas Tribal Code. The rules for Administration of intestate estates fall under Section 6.6. 

Probate and administration of estate property can be complex. We recommend contacting a local probate lawyer for assistance with the probate process.

If you need help finding a lawyer, you can:

A guardian is an adult appointed to take care of the person or property of another. Unless a guardian has been appointed by a court, each parent is the natural guardian of their minor children.

There are two types of court-appointed guardianship. Guardianship of the estate (Tribal Code Section 6.8.4) and guardianship of the person (Section 6.8.3). Guardianship can be either temporary in nature (Section 6.8.6) or permanent in nature (Section 6.8.5), subject to the terms of the order.

Under Section 6.8.8 of the Tribal Code, a Guardianship Petition must include the following:

  • Full name, address, and tribal affiliation of the petitioner;
  • Full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward;
  • The basis for the Court’s jurisdiction and if the petitioner is not a member of the tribe, a statement that the petitioner consents to the jurisdiction of the court;
  • The relationship of the proposed guardian to the proposed ward, if any;
  • The name and address of the person or agency having actual custody of the proposed ward;
  • Whether any court has issued any orders concerning the custody or estate of the proposed ward and, if so, the name of the court, title and number of the case, and nature of the proceeding. A true copy of any orders shall be attached to the petition if available; 
  • The type of guardianship requested and why there is a need for appointment of a guardian;
  • Whether an emergency guardianship is sough and, if so, the nature of the emergency;
  • In the case of alleged incompetent persons, the grounds for incompetency under Section 6.8.11; and
  • A full description and statement of value of all property owned, possessed, or in which the proposed ward has an interest (if guardianship of the estate is requested). 

All petitions for guardianship must be signed under oath and dated by the petitioner(s), and must be notarized. 

In the event that guardianship is appointed over the estate, management of estate property is strictly outlined in Section 6.8.10.

Termination of Guardianship: Upon motion of any person, including the Tribe, the Court, after notice shall hold a hearing on whether to remove a guardian. 

The Probate Code is located in Chapter 6 of the Tribal Code. The Probate Code contains extensive provisions based on several variables surrounding the probate process. Some of the relevant miscellaneous provisions are detailed below:

  • Under Section 6.1.7(3), A person who is absent for a continuous period of five (5) years, during which they have not been heard from, and whose absence is not satisfactorily explained after a diligent search is presumed to be dead. Their death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
  • Under Section 6.1.15, A person who is divorced from a decedent is not a surviving spouse for purposes of this code.
  • Under Section 6.3.6, a person conceived before the decedent’s death, but born thereafter will inherit as if they had been born in the lifetime of the decedent. 

Under Section 6.3.9, An adopted person is the child of an adopting parent and of the natural parents for inheritance purposes only. An adopted person shall also inherit from all other relatives of an adoptive parent as though the adopted person was the natural child of the adoptive parent and the relatives shall inherit from the adoptive parent’s estate as if they were the adoptive parent’s relatives.


Source URL: https://texaslawhelp.org/checklist/kickapoo-tribal-code-probate-code