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Conversation With Judge Deer - Part 2 · Asked & Answered - your community podcast for all things legal

• 0:00
  Kierstin: So this is where our stories diverge because so it's so crazy because I kinda have some similar story, and we've never shared this. We've never talked about this at all. Yeah. So the thing is here, what I've learned today is if you want advice about this, you send them to Elaine. You don't send them to me.
• 0:27
  Hi, everyone. Welcome back to Ask and Answered. I'm Kirsten Anderson, and Elaine Breland is out this week, but I'm excited to have Judge Dear back with us. Today's topic is a little heavier, but before we get there, I wanted to start with something more personal, your last name and some stuff about your family. I think it's always fascinating to hear the story behind a name and the family history it carries.
• 0:48
  Can you share a story or the meaning behind your name, Judge?
• 0:53
  Judge Deer: Yes. Thank you for that question because my last name is a little unique, Deer, like the animal, D e e r, and my dad is was Kiowa and Creek from Oklahoma, and so it comes from our Creek side, the Muskogee Creekside, Deer. My mom, she's Pima Maricopa from here, and so we're enrolled here at Salt River. And Deer, years ago, my great, great, great, great grandfather, his name was Little Crazy Deer.
• 1:28
  Kierstin: Oh.
• 1:28
  Judge Deer: That was his name. Okay. No surnames, it was just who he was. And in Muskogee Creek, it's Ichohaji ji, Ichohaji ji, which means little crazy deer. And when the government came to start enroll us and put us on paper through translation, they said, what is your name?
• 1:47
  And he repeated, Ichohaji ji. And the translator said it means little crazy deer. And they said, well, that doesn't fit, so we're gonna name you Thomas Riley.
• 1:56
  Kierstin: Okay.
• 1:57
  Judge Deer: I don't know where that came from.
• 1:58
  Kierstin: Yeah. Was gonna say that doesn't sound any closeness.
• 2:00
  Judge Deer: So they went back and forth, and finally, they said they settled with Deer, last name. They cut out Ichohajiji, they cut out Little Crazy and just put Deer.
• 2:10
  Kierstin: So you could have been Crazy Deer.
• 2:12
  Judge Deer: Yeah, Judge Little Crazy Deer.
• 2:14
  Kierstin: That's great.
• 2:16
  Judge Deer: And so from there, it's Deer is our last name. I have four sons and my wife. We just celebrated our twenty seventh anniversary in May. And we have four sons and three are all grown up. We have one more 12 year old in middle school.
• 2:34
  And my wife, she's the only daughter, the only of her side, and she has eight brothers.
• 2:41
  Kierstin: Oh, wow.
• 2:42
  Judge Deer: So eight brothers, only daughter, and now she has all four sons.
• 2:47
  Kierstin: Well, speaking of family, this is actually a perfect segue into today's topic, which is probate matters. When you talk about wills, estates, and handling a loved one's affair after they pass, it's not just legal paperwork. It's about families, memories, and even conflicts. Judge Deer, for people who might not be familiar, can you start explaining what probate is and why it matters?
• 3:11
  Judge Deer: Yes, probate is very complex in our system because it affects families. And when someone passes away, they have to go through probate so that they could distribute whatever property they had. We call the person who passed away as the decedent. The decedent has property, and so the family is entitled to that property, but sometimes, and I always repeat this, the court handles disputes. And so when there's a dispute, then the court will make a decision according to the law.
• 3:49
  But if there's no dispute, sometimes families, they distribute the property accordingly through customs and tradition, and there's no disputes, and everyone's happy, and it goes, settles that way. But in probate, it's really great to have it on record so that everyone leaves with satisfactory that everything was distributed properly.
• 4:10
  Kierstin: And I think that it's a little more complicated here in the Community. And judge, you can jump in at any time. But I think it's a little more complicated in the Community because you could have to go through tribal court. You could also have to go through the Office of Hearing and Administration through federal court. And if there were any sort of state processes or any, state court, you could possibly have to go through state court proceedings as well.
• 4:39
  Maybe, maybe not. I think sometimes that could be captured through tribal court. It just depends on the type of property it is. Yeah.
• 4:46
  Judge Deer: With that in mind, with Salt River Courts, we have jurisdiction over the property. Possessions, coin collections, memorabilia, clothes, and the home structure, vehicles. And so what I always advocate as a judge, as an educator also, as judicial officers, we're educators. We always have to go out and explain the process, but always turn people to legal services or to get an advocate to see their rights as far as legality is concerned. But one thing I would emphasize everyone to try to do is have a will.
• 5:33
  And once you have a will, that's controlling to the court. The judicial officer will ask, is there a will? And if there's a will, that's controlling in the court. If there's no will, then the court has to go to the law and see how to distribute equally according to the law. And that's where sometimes families can be in dispute about who gets what.
• 5:57
  Kierstin: Yep. So I appreciate that plug, Judge, because I as you're probably aware, legal services does do wills.
• 6:04
  Judge Deer: Yes.
• 6:04
  Kierstin: And those are documents that, as you mentioned, you can outline your wishes so that when you if you ever had to go through the court process, the family knows exactly how the property is distributed. And you kind of mentioned earlier that if family agrees, they may never even have to come to the court.
• 6:27
  Right? And so the will kind of outlines everything that happens, but it's a process to some property needs to have, like, that court order. Right?
• 6:37
  Judge Deer: Yeah. Through your office, they can have that will, and the family will know exactly what property goes where, and so there's no dispute. But without that will, then it comes to the court, and the court will look at the the law and distribute it accordingly. And land wise, again, Salt River Courts, we are not we don't have jurisdiction over the land, only the property, which could be the home structure. And if anything, I encourage everyone to, if there's a beneficiary, for example, just as only example, let's say someone has an account at Wells Fargo and they pass away, but they named a beneficiary, and Wells Fargo will handle that.
• 7:19
  They don't have to go to court, and they may bring it up in court, but it's not before the court to address, because Wells Fargo already handled it. But Wells Fargo will ask for a court order if the person who passed away didn't name a beneficiary. Now you need a court order, and then whatever money is in there will be distributed equally to whatever the will states or according to what we call intestacy law, where there's no will.
• 7:48
  Kierstin: Right. Judge, can you talk to us about what type of probate cases can be heard in tribal court?
• 7:56
  Judge Deer: So right now, there's the probate case where there's a will, where the deceased person left the will, and we would hear that, read the will on record, or all parties will have access to the will, and they'll know for themselves what the will states. Another one is the no will, which is called the intestate. And so when it's intestate, that's no will, then that's where we have to see who are the potential heirs.
• 8:26
  Kierstin: Okay, so going back to a probate matter when there is a will, what would that look like for people?
• 8:33
  Judge Deer: So, with the will, that's all controlling in the court, and so the court will look at it, the judicial officer, the judge will look at the will and ensure that all parties who are the heirs of that will are notified for a hearing, and if they're not, then the administrator of the estate who represents the estate would have to seek their address, their names, and submit it to the court so that they can be notified that there's a will with their their potential heir in that will.
• 9:07
  Kierstin: And then does the court have any leeway as to having property dispersed in that person's estate differently than what the will says?
• 9:18
  Judge Deer: Again, every case is different, because the will would capture all of that. For example, let's say someone who is named in the will, but they passed away themselves, or that person passed away, usually, you'll have what we call second person in case that person passes away, they'll leave it to another person. Mhmm. And so we have to that's another layer of person we have to go and seek and notify them that they're an heir
• 9:48
  Kierstin: to the So I think what one of the things that I'm learning right now is that it could be complicated, right? So your will can outline all of those pieces, but if certain things happen, then the will will speak to those additional things that could happen. So it's ultimately still going to go by the will, but it depends on the facts of And the also, could it depend on how the will was written as well?
• 10:20
  Judge Deer: Correct. Because when you get your will and your office will work with them, they will try and capture all scenarios in case someone some so and so passes away or maybe somebody becomes incapacitated and they have a guardian and they're an adult, but that guardian adult has to be notified also. So, like I said, every case is different and complex, but the main thing, the main issue is proper notice. We have to look at the will and make sure that everyone who's in the will is properly notified. Otherwise, the court cannot close out probate.
• 10:57
  Kierstin: Okay. So what about if someone doesn't have a will? What does that look like? You mentioned it earlier.
• 11:04
  Judge Deer: Yeah, as I say, that's intestate, and so what that looks like is, same process, you have an initial probate, and we need an administrator, someone who is impartial, unbiased, and willing to collaborate and cooperate with everyone, And for the reason I say impartial or unbiased is because they could have a document brought before them. They would have to submit that document to the court fully, and not alter it and have it fully before everyone, no matter what it says. And so, once that's before the court, then all the heirs are able to look at that document and make sure that everyone has access to that document. And then intestate rules, we have to go by what intestate law is, and that's a whole property podcast in and of itself. Yeah.
• 12:00
  But basically it's who are the next people in line, they have to be notified.
• 12:06
  Kierstin: So in the intestate, if I have a family member who has passed away, they didn't do the well, so the family doesn't know exactly who is going to receive. When you talk about intestate, that's the law that tells the court who is going to receive the property, is that correct?
• 12:26
  Judge Deer: Correct. And who's gonna receive it equally. For example, if it's one person, then it's 100% that person. But if it's 50%. Three, one third, so it's just a numbers game.
• 12:38
  And that's what we always, as judicial officers, we have to educate everyone, saying, if they're in error, everyone under intestate gets equal distribution of whatever it is.
• 12:50
  Kierstin: So if my mom were to have done a will, and she would say, Okay, Kirsten, you get the car, Heather, you get the house, and then to my brother, you get you But in the if she passed away without a will, that's not how it works.
• 13:08
  Judge Deer: Yeah. If she passed away without a will and there's three of you, the court will order all three will one third of her car, one third of her house, one third of her bank account. How that plays out, that's up to the family.
• 13:21
  Kierstin: Okay. And then at some point, I know with regards to, like, family can work it out with each other. They can say, okay, we agree that you'll get the car or we agree you get the house. Like, that's something that could be worked out within the family. Is that correct, Judge?
• 13:38
  Judge Deer: Right. So once the order is issued, the order is the order, but once you have that order, so and so can turn around and say, you can have the car, you can have the money. It's out of the court's hands
• 13:51
  Kierstin: Right.
• 13:51
  Judge Deer: Of what you do with that money or with that car.
• 13:53
  Kierstin: Right. But if they don't agree, then what would they need to follow?
• 13:58
  Judge Deer: Go see your office for legal services.
• 14:01
  Kierstin: For legal advice.
• 14:02
  Judge Deer: Legal advice. Yeah.
• 14:04
  Kierstin: But essentially, that your order would stand. Right? Like, as far as like how the division should happen.
• 14:12
  Judge Deer: Right.
• 14:12
  Kierstin: Right.
• 14:13
  Judge Deer: And then they can go to your office, and then you can look at the order. You're gonna probably request the order from them, and then that's a whole new ballgame of probably a civil matter.
• 14:22
  Kierstin: Right. And then talking through it and getting legal advice and what sort of steps can be taken or not taken. So Judge Too, and I kind of mentioned this when I first started up or opened with the podcast, what type of property can the tribal court hear? Is there an ability for the tribal court to probate, if you will, land within the community? Or what type of property specifically does tribal court hear over?
• 14:49
  Judge Deer: Yeah, we're unique in that a community member would have to probably go to two types of jurisdiction. The land would be BIA, federal, but the the any property, coins, coin collections, money, home structure, vehicles, things of that nature, the court can look at. Clothing. Sometimes that's taken care of by custom and tradition. Family gets together.
• 15:19
  They have a meeting, and they can distribute as they wish. Again, that's every family's different. Some will say, wait. They'll have their family meeting, and they'll say, wait. Let's submit to the court.
• 15:33
  Let's get an administrator, and we'll let the courts handle it.
• 15:37
  Kierstin: Okay. You said something too. And I guess for the audience, I wanna make sure that maybe we can talk about the process. So we talked about it as far as when they wanna file the court action, they could come to legal services. We could help fill out those forms for them and and do that.
• 15:54
  But once they file that legal paper with the court, can you tell us what those next steps look like? What will what would what does the court do at that point?
• 16:05
  Judge Deer: So right now, we have judges rotation, and the court clerk will get the petition, and they'll see which judge is next in line. So it's not like we have a meeting and we say, here are the cases. Alright. And judge so and so will say, I want this case. I want that case.
• 16:23
  No. The clerks do that rotation for us, and whoever is the next judge in rotation will get the next case. Another filing comes in, the next judge in rotation will get that case. So it's not handpicked by a judicial. It's all through their clerk of the court.
• 16:38
  And they'll set out a hearing within usually thirty to forty five days out depending on the court calendar, and then we'll go ahead and have what we call an initial probate hearing. Now at the initial probate, we get all the information. Let's say at the initial probate, there's some errors who are not there. They weren't notified. That's okay because that's why we have initial probate hearing.
• 17:02
  We're here to see, alright, who should be notified?
• 17:05
  Kierstin: Okay.
• 17:05
  Judge Deer: The court's not gonna make a judgment of closing out the probate at the initial probate hearing. Although there's very rare cases in general, in theory, it could happen because all the parties showed up, they're all there, and they have all their documents and it was all finished. But absent that, yeah, the court will set another hearing and notify those who need to be notified.
• 17:29
  Kierstin: So at the initial hearing, they what the court does during those initial hearings is, establish who's gonna be the personal representative. And so I wanna ask a question about that, one. And then two, they'll the court will set another hearing is what I hear the court Right. Or you're saying right now. And then maybe the third piece would be making sure that all the heirs who could receive under this probate matter is notified.
• 17:57
  Right. Okay. So going back to the personal representative, how is that determined who is appointed or assigned as the initial personal representative? Excuse me.
• 18:09
  Judge Deer: It's that person who files the petition, and they're saying, I would like to be the administrator of the estate. And then the court, at the initial, goes over their duties and responsibilities, swears them in, and goes over their duties. And if they're able to fulfill those duties because keep note, there's a lot of, quote, unquote, running around. They have to go to the bank statements, look at bank statements, creditors, possibly to tribal finance to see if there's any money in holding. So there's some running around to do.
• 18:40
  But with your office, if they're represented, they can have that assistance also.
• 18:45
  Kierstin: Okay. What if you had two individuals that wanted to be the personal representative? Representative? Does the court have to decide between that, or is that a family decision? Or how does that work out?
• 18:56
  Judge Deer: Again, the court handles disputes. And if the family can collaborate and cooperate and they come out saying, here's our representative, that's great. If they can't, that's okay because then the court will look at, who's fit for those duties and responsibilities. In theory, someone can say, you know what? I don't have time to do all that.
• 19:16
  I'll I'll withdraw my petition. Now we're left with one. But, again, each case is different. We'll know at that initial.
• 19:23
  Kierstin: Right. And so you mentioned too, as far as the the personal representative needs to actually be they're being appointed, they take their court order, and then they start trying to find the property. Right? Or get information about the property so that the court knows what all existed.
• 19:41
  Judge Deer: Exactly. And the administrator traditionally will hold a meeting with the family. And, again, remember, the administrator is unbiased, impartial, so he or she is to go out and invite all those who are potential heirs to this meeting and see if they can collaborate, cooperate, and go from there as far as distribution. And now I would notify everyone and I go on the bench also and I do some education is that the administrator is the collaborator. So go through the administrator as far as property and who wants what.
• 20:18
  But again, depends on what type of case it is. Intestate, no will, or will, that's who the administrator is gonna call to that meeting and collaborate and cooperate as far as how it's gonna be distributed, the property.
• 20:32
  Kierstin: Right, okay. So then you said a little bit ago that you have the initial probate and then you're gonna have another hearing. So then what happens at that second hearing?
• 20:43
  Judge Deer: It's what we call an update. Usually, they call it a probate status. At each hearing, I always tell the parties that our goal is to close out probate so that the family can have closure and they can, move on with their lives, with the decedent's property, however they deemed it necessary, again, depending on what type of case it is. Now what we do is at that those status hearings, the administrator will update the court. We're lacking documentation from the IRS.
• 21:15
  We're still looking at tribal finance to see if there's anything in holding. And they'll tell the court, I need thirty more days, or I need sixty more days. Mhmm.
• 21:24
  Kierstin: How long do you think, or what's the average length of time that someone could be in the process with the court?
• 21:32
  Judge Deer: So ideally, you have the initial probate hearing, they file, thirty days out, we'll have the initial, and then thirty days after the initial, they might have everything in order, and ideally, sixty days from filing the petition, sixty days later, you could have a final probate order.
• 21:52
  Kierstin: Oh, wow.
• 21:52
  Judge Deer: Sometimes it goes ninety days. Depends on the situation. Every situation's different. Now, if they identified an heir whose whereabouts are unknown, then there's no other recourse but to notice them by publication. Mhmm.
• 22:09
  In the community newspaper, stateside, and there's four postings throughout the community. That takes usually around sixty days.
• 22:18
  Kierstin: Okay. So if they had to do publication, then that could prolong the way that the how fast or whatever the case goes.
• 22:28
  Judge Deer: Exactly.
• 22:29
  Kierstin: And then also, think I heard you say that sometimes the personal representatives are trying to get information. They don't have that information that they need for the court. So then that can also prolong a case as well. So even though if everything's in order and it's all moving along, it could be done in three months, it could go six months to a year. Is that sound about right?
• 22:54
  Judge Deer: Depends, yeah. If they're waiting for documentation or people's whereabouts are unknown, you could have a case where you're going throughout the case, and three, four, six months later, you're ready to close out, but in theory, comes forward and says, wait, I'm an heir. So now you have to halt everything and address that matter.
• 23:15
  Kierstin: Right. Right. Right. It's definitely not the three to five years that the Office of Hearing Administration, the federal process takes. Yeah.
• 23:25
  So that's it's a little better, a little faster, but the court can only her certain matters So as well in talking through this, are there any steps family can take to make this probate process smoother?
• 23:40
  Judge Deer: Communication. If families can communicate with one another, and again, have those family meetings, those family meetings are very important. Let's say there's a family who, maybe they don't get along, you still gotta have those meetings, and collaborate and cooperate, so that families, if there's a dispute, because again, we don't know if the family's in dispute. If there's a dispute, then all property needs to stay put. Right.
• 24:09
  And it's not everyone You leaves takes what they have to wait for a court order or wait for the family, maybe there's a will that controls everything and they read the will, so it all depends on, each case is different, but in general, I would advocate all family members to maintain communication. Yeah. And no matter what the status of their family is, maintain communication and have those meetings so that you can know what's in dispute. And that's fine. If things are in dispute, but everyone is getting along and they're cordial, that's fine because then the court, as I stated, will handle disputes.
• 24:48
  And, it all depends on if was there a will? Then that's all controlling. And if there's no will, then we still have to go by the law, intestate law, which identify the errors and see who where they are, notify them with the hearing, and distribute equally.
• 25:06
  Kierstin: Right. Yeah. We didn't really talk about or at least I don't think we did yet about certain assets that may not be part of the probate process because they had a a named beneficiary. What sort of examples would have a named beneficiary that wouldn't be part of the court process?
• 25:26
  Judge Deer: So it all depends as I used the Wells Fargo earlier, but you could have
• 25:33
  Kierstin: Like a four zero
• 25:33
  Judge Deer: one k? Four zero one k. Perfect example. You can have a four zero one k, person names a beneficiary, then that's not before the court because that job site will handle everything.
• 25:43
  Kierstin: Right.
• 25:43
  Judge Deer: But the job site will need an order from the court if there's no beneficiary to release the funds to the administrator of the estate.
• 25:51
  Kierstin: So it totally depends on if they did have a named beneficiary, you know, so that asset, not necessarily, that asset may not be heard by tribal court because they have a beneficiary. But if they don't have a beneficiary, then it could be heard by tribal court. Right? And I also, one of the other things that stands out to me is homesite leases, right? Because homesite leases also sometimes have beneficiary beneficiary deeds deeds and and that that names who would receive the home.
• 26:19
  So that may not also be part of
• 26:20
  Judge Deer: Correct. And administrator would go to a CDD and they have that information. But again, in order to access that information, from what I understand is they need the, what we call letters of administrator that tells any entity that they represent the estate, they're the official representative of
• 26:38
  Kierstin: Oh, the okay, okay, so they're not gonna be able to just department, get that information without a court order?
• 26:45
  Judge Deer: Correct, or even to Wells Fargo or Chase, they'll say, Who are you? Because you can't just go to any bank and say, Give me the information of this so and so, they would need a court order or the administrator letter saying they represent the estate.
• 27:03
  Kierstin: Gotcha. Okay. So that's probably super helpful information for individuals to know, especially if they have someone that they're trying to find out information on.
• 27:14
  Judge Deer: The administrative estate is issued by the court.
• 27:17
  Kierstin: Right. Gotcha. We were also just talking about how to make the probate process smoother. And I know we talked about this earlier, but wills, right? I mean, having the, individual create a will would definitely make the process smoother.
• 27:30
  But I wanted to hit on a point that you said too is communicate. And it's something that we always talk about in our office as well when you prepare a will. Like, having family discussions is super helpful
• 27:43
  Judge Deer: Right.
• 27:43
  Kierstin: So that there's no surprises too. I think that even if you've created a will and no one knows what's in the will, I think it is helpful to have those conversations so that everyone is prepared on what is gonna happen after someone passes away.
• 27:58
  Judge Deer: Correct, every family's different, every family dynamics is different. People move away and they move out of state, but communication is very key to keep everyone in the loop. So I could just state it. There's no surprises. But again, every family dynamic is different.
• 28:13
  Kierstin: Yep. Are there any common misunderstandings within this process that you would want individuals to know? Anything we haven't talked about?
• 28:24
  Judge Deer: Probably in general, not just probate, but in general, people need to realize the court is not first responders' agency. Oh. A lot of people rush to the court to get something very immediate, even under probate. They want something very immediate on a matter. But again, plug for your office again.
• 28:45
  Go to legal services and tell them their situation and then you can help them and give them legal advice of what to do he's saying. Oh, yeah. That's not for the court. Because one example is I tell everyone, even on the bench, that as citizens, we all have access to first responders. First responders are your firefighters, police officers, CPS, or APS adult agency to help those vulnerable adults who need help.
• 29:16
  Those are your first responders because they have someone twenty four seven that can assist you. The court is only open from eight to five Monday through Friday, and so that's where those first responders come in. And in probate matters, there could be emergency issues that the court wants that the parties want the court to address, but they have to look at pan back. Is this an emergency that can be handled by first responders or get legal advice from from your office?
• 29:42
  Kierstin: Yeah. So I guess to your point, judge, that that the court works from eight to five, it's not necessarily gonna be heard right away because, and you know then I know, you have to serve parties, other parties, and so there's always a process. So it's not something that you'll have like an instantaneous answer. I think that's what you're And sort of alluding to
• 30:05
  Judge Deer: our process right now is thirty days out. Once we get the petition, thirty days out, because there's a whole set of another cases that we're addressing throughout the week and throughout that month that have already been set maybe weeks ago or months ago.
• 30:19
  Kierstin: Mhmm. Well, I think I've asked everything that I wanted to ask you today. I really appreciate you coming in. I really appreciate having this dialogue. I know this is something that individuals, have to handle at some point in their life.
• 30:36
  It's a difficult time, and we're just trying to make or provide some answers to kind of make this process or help individuals understand this process a little more.
• 30:47
  Judge Deer: Yeah. That was my pleasure. I'm thankful for being here and to always discuss these matters with the public, with the community.
• 30:55
  Kierstin: Thank you for joining us on Ask and Answered today. We will see you time.