Purchase at Probate: Regulatory Procedural Requirements
This content provides detailed information on the regulatory procedural requirements for purchasing property at probate, including written request procedures, consent guidelines, and eligibility criteria. It also covers when and what property can be purchased, who is eligible to purchase, and the importance of consent in the purchasing process.
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Presentation Transcript
PURCHASE AT PROBATE 43 C.F.R PART 30, SUBPART G MARY DICKMAN mary_dickman@oha.doi.gov 1
Regulatory procedural requirements Written request to purchase by eligible purchaser - 30.164, 30.161 Notification of Request to Purchase 30.165 30.166 Consent, when required - 30.163 At least Fair Market Value - 30.167 Opportunity for heir/purchaser to object to appraisals, with interlocutory appeal rights 30.169 30.170 Notification of grant of request to purchase 30.171 Timely payment of purchase price (deposited into Decedent s IIM account) 30.172 30.173 Purchase (or denial) must be included as part of the decision and proceeds allocated among heirs 30.160(b) and 30.168(a) 2
When property may be purchased 30.160(b): Purchases at probate under Subpart G must be exercised before a decision is entered, and must be included as part of the decision distributing estate. 3
What may be purchased? 30.160: Any interest in real property, if DOD is on/after June 20, 2006, including life estate. Certain interests may only be purchased with consent of heir or devisee. 4
Who may purchase? 30.161: Any devisee or eligible heir (under AIPRA definition) taking interest in the same parcel Any co-owner Tribe with jurisdiction over the property Secretary on behalf of the tribe 5
Consent 30.163: Consent required unless: Tribe with jurisdiction is purchasing Interest will pass by intestate succession Decedent s interest was < 5% Heir or SSP not residing on property at time of death Heir or SSP not a member of purchasing tribe or eligible to become a member 6
Consent (continued page 2) Use of Order seeking notice from heir(s) that they would consider option of selling their inherited interest(s) before ordering appraisals -- Ideal: request to purchase is made before the hearing, and the heir(s) state at the hearing whether they would consider the option of selling their interests. If no heirs would consider selling, there is no need to order appraisals. Purchase can be denied. For all other situations, should appraisals be ordered if the heir(s) have not stated they would consider selling? Judge can order the heirs to notify PHD if they would consider option to sell their interest(s). What if heir is not responsive? Is the sale defeated? Should we order appraisal anyway? Alternatively could the Judge order a party to object to the sale, otherwise consent will be deemed to be given? 7
Consent (continued page 3) Form of Consent - Not set out in AIPRA Should consent be obtained in writing, or is it sufficient to have consent on the record (i.e. consent obtained at a hearing)? Obtaining consent at hearing: Once bid(s) are submitted, schedule a hearing for the sole purpose of determining whether heirs/devisees consent to purchase and which bid to accept. Prospective purchaser(s) and heirs may negotiate the purchase price (as long as it is not less then FMV). 8
How to initiate purchase? 30.164: written request to purchase to OHA BEFORE the decision is issued. 9
Notice of Request to Purchase 30.165: OHA must provide notice of a request to purchase at probate to: Heirs/devisees and Tribe first class mail BIA Agency first class mail All parties who submitted request to purchase - first class mail All other eligible purchasers posting by BIA 10
Notice of Request to Purchase (Continued page 2) 30.166 requires notice to include Type of sale Date, time, and place of sale Description of interest to be sold, and The appraised market value of parcel and interest being sold, determined in accordance with USPAP or other valuation method developed by Secretary pursuant to 25 U.S.C. 2214 11
Notice of Request to Purchase (Continued page 3) Before issuance of Notice of Request to Purchase, the following must be id ed (use Preliminary Order on Purchase at Probate and Order for Appraisals?): Who are heir(s)/devisee(s) of property interests Which tribe has jurisdiction Who are all eligible purchasers FMV of all property/interests to be purchased: 12
Approval/Denial of Purchase 30.167 if no consent required, OHA will sell the interest to the eligible purchaser. (Notice of Successful Bid) - if consent required, OHA will sell to the eligible purchaser selected by the applicable heir/devisee (or will deny sale if heir/devisee does not consent). - 13
Objection to Appraisal 30.169: Heir or devisee whose interest is being sold or potential purchaser can file objection to appraisal: - within 30 days after the date on which the notice of request to purchase is mailed; and - submit any supporting documentation within 15 days after filing written objection. Note: Does the objection fail if no supporting documentation is submitted? - Judge determines market value, determines whether to approve the purchase, and provides instructions for interlocutory appeal of determinations 14
Appeals of Sales for Contested Value 30.170(a): Interested parties adversely affected by judge s determination to approve a sale if the appraisal was contested under 30.169 may file an objection with judge and request interlocutory appeal to IBIA within 15 days after the mailing of the judge s determination. See also, 30, 169(b). (1) The objection must state the reason for the objection. (2) Be served on interested parties and agencies 30.170(b): Timely objections are forwarded to the IBIA with a certified copy of the complete record, and a table of contents for the record. 30.170(c): Untimely objections will be denied, served on interested parties and agencies and may be challenged through a petition for rehearing under 30.238, after decision. 15
Granting Sale and Notice of Successful Bid 30.171: When request to purchase is granted the judge must notify: All bidders by first class mail OST Agency that prepared the file Agency having jurisdiction over the interest Notice must include: Name of the estate involved Parcel and interest sold Identity of the successful bidder Amount of the bid 16
Payment 30.172: Bidder must make payment to OST: In full By cashiers check or money order To lockbox (Lockbox is chosen based on agency having jurisdiction over the Decedent, not the land being sold). Within 30 days after the mailing of the notice of successful bid. Note: time for payment may not be extended. See 30.174(b). 30.173: When full payment is timely received: OST will notify OHA and deposit $ into decedent s estate account Order approving sale should direct LTRO to record the transfer of title to the successful bidder as of the payment date 30.174: When full payment is NOT timely received: Sale will be canceled interest will be distributed to heirs/devisees as previously determined by judge partial payments will be returned 17
Proceeds from Sale 30.168: proceeds from the sale are allocated: Among the heirs based on their fractional ownership in the parcel to the holder of the life estate interest according to the ratios set out in 25 C.F.R. Part 179 18
Initial procedures OHA holds hearing (if not already complete). If consent would be required, ask heirs/devisees if they would consider the option of selling their interests. Does the purchase require consent? OHA receives written request for purchase Follow procedures for no consent required No Yes Follow procedures for consent required 19
NO CONSENT REQUIRED Issue Prelim Order on PAP to ID heir & properties for purchase and order appraisals Appraisals received Issue Notice of Conditional Req. to Purchase with appraisals. Orders Tribe to submit firm offer, BIA to post & co-owners to submit firm offers, and heir to object to appraisals Heir or potential purchaser objects to appraisals Tribe makes only firm offer for market value Co-owner(s) also makes firm offer for market value Objections filed w/in 30 days? Yes No Yes No Yes No Yes No Supporting docs for objections filed w/in 15 days? Hold hearing on purchase, heir may choose which bid to accept No Purchase denied, Issue decision Issue order determining FMV ordering Tribe and co-owners to submit new offers Yes Purchase approved. Issue Notice of Successful Bid & Order to Submit Payment (30 day, lockbox info) Judge determines FMV and whether to approve purchase, provides appeal rights for adversely affected parties FMV changed and no appeal FMV not changed and no appeal No Payment timely received by OST Yes Issue Notice of Payment, Order to Transfer Title & Decision (include distribution of payment) Heir or purchaser appeals FMV determination to IBIA Process stops until IBIA issues opinion 20
CONSENT REQUIRED Issue Preliminary Order on PAP and order for Appraisals (or order heirs/devisees to notify if they would consider selling, if not already asked?) Issue Notice of Conditional Req. to Purchase and Order to Submit Bid with appraisals. Orders Tribe to submit firm offer, co-heirs to submit offers , BIA to post & co-owners to submit firm offers, and heir to object to appraisals Appraisals Received Offer made by Tribe, co-heir or co-owner Heir or Potential Purchaser objects to appraisal Objections filed w/in 30 days? Yes No Purchase denied, Issue Decision Yes Yes No No No bids accepted (i.e. no consent given) Hold hearing on purchase Supporting docs for objections filed w/in 15 days? No Issue order determining FMV ordering Tribe and co-owners to submit new offers Bid accepted (i.e. consent given) Yes Judge determines FMV and whether to approve purchase, provides appeal rights for adversely affected parties Issue Notice of Successful Bid & Order to Submit Payment (30 days, lockbox info) Issue Notice of Payment, Order to Transfer Title & Decision (include distribution of payment) FMV not changed and no appeal No FMV changed and no appeal Payment timely received by OST Heir or purchaser appeals FMV determination to IBIA Yes Process stops until IBIA issues opinion 21
