Preparing Your Own Will

Special Issues for All Alaskans

Real Property (Land/Buildings)

Under Alaska law, real property may be held in “tenancy by the entirety” or “tenancy in common.” A husband and wife holding title to real property hold it as “tenants by the entirety.”  This means that when one spouse dies, the other automatically becomes the sole owner.

People who are not married to each other can only hold title as “tenants in common.” There is no automatic right to inherit from each other. If you are a co-owner holding title as a tenant in common, you must use a Will to leave your share of the property to the remaining owner of the land if that is what you want to happen.

For example, an unmarried couple who jointly own a home. They each own a 50% share of the property. If one of the owners dies without a Will, his or her 50% share in the property will pass to his heirs, not to the remaining owner. Even if the couple were living together for 20 years, purchased the home together, and invested thousands of dollars in maintaining the home, the surviving owner would not be entitled to the deceased’s share of the home. Instead, that 50% share would go to the deceased’s heirs, such as surviving children, parents, or siblings. If the surviving co-owner can’t reach an agreement with the heirs or afford to buy out their share, the property would likely need to be sold and the cash divided between all the owners.

Vehicles

When it comes to cars, trucks, house trailers, and other vehicles, ownership may transfer to the person whose name is listed as co-owner on the title document if the title is listed in the form “Sam or Mary.”  If the title is listed in the form “Sam and Mary” and Sam dies, his one half ownership interest in the vehicle would pass according to his Will (or the rules of intestacy if there is no Will). So, if you are unmarried and jointly own a vehicle, you should provide for such property in your Will.

Bank Accounts

A bank account which you share with your spouse or someone else may go to that person automatically without a Will. Exactly how it works depends upon how the account was set up with the bank. Check with your bank if you are not sure what it will do with your accounts after your death and change your agreement if you do not like the one you have now.

Life Insurance

The proceeds of a life insurance policy on your life will go to the person you have named on the policy to receive that money (the "beneficiary"). You cannot change the name of your life insurance beneficiary in your Will. You must contact your insurance company to make any changes on your insurance policy involving beneficiaries.

Commercial Fishing Permits (Limited Entry permits)

Many commercial fisheries in the State of Alaska require a special “limited entry” permit in order to participate. Some of these permits can be quite valuable. Prices are set according to the free market. A limited entry fishing permit cannot be left to more than one person. The law will not allow the permit to be divided among your spouse and children.

If you do not mention the permit in your Will, or if you have no Will, the permit will go to your spouse. If you have no spouse, the permit will probably need to be sold unless you only have one heir or, if you have more than one heir, all of the heirs agree who should get the permit. So, it is very important that you have a section in your Will naming the person who is to receive your fishing permit.

The federal government also has a limited entry program, called Individual Fishing Quotas (IFQs). This is valuable property which can be distributed pursuant to your Will.

Death Taxes

The State of Alaska has no estate tax.

If you die in 2017, there are no federal estate taxes for estates under $5,490,000. However, if your estate is sizeable, do yourself a favor and consult a lawyer rather than rely on this presentation to prepare a Will.

Special Issues for Alaska Natives

Remember, if you are an Alaska Native who owns or may eventually own an allotment, restricted townsite property, or reindeer, in order to make a Will you must 1) be 18 years of age or older; and 2) make sure that your witnesses are neither related to you nor benefit from your Will. If one of your witnesses is found to be an interested person, your Will is no good. And, you must include a self-proving affidavit in your Will.

Native Allotments, Restricted Townsite Lots, and other Restricted Property

If you own a Native allotment or a restricted townsite lot, this property should be mentioned in your Will. Unlike a limited entry fishing permit, allotments and townsite lots can be left to more than one person. However, the “fractionalization” of restricted land is becoming a major problem in some areas. This happens when the owner of restricted property dies without a Will and title is then divided amongst many different people. This can cause serious problems with managing or using the land, because all persons with an ownership interest in the property have a say as to how the property can be used and are entitled to be compensated for such use. Care should be taken to obtain a full listing of all restricted property an individual owns, since a person may have his own restricted property as well as inherited interests in a deceased relative’s property.

Federal Probate

If you have restricted property, your estate will be subject to both federal and state procedures. The BIA has a special procedure to probate all restricted property held in trust, while Alaska law and procedures will govern non-restricted property.

Regional and village corporation stock

If you own stock in a regional or village corporation created under Alaska Native Claims Settlement Act, you may contact the corporation for assistance in preparing a special document designating the beneficiaries of your stock (a stock Will). Since such documents only apply to Native shares, this document is no substitute for a Will that transfers the rest of your property. It is wise to repeat the gift of your stock in any Will you make. If you change the beneficiaries of your Native stock in a Will, the Will should control, assuming it is valid.