Wills & estates on reserve

In August 2017, the Prime Minister announced the dissolution of Indigenous and Northern Affairs Canada (INAC) and the creation of two new departments: Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada. This transformation will take time. Information about wills and estates on reserve is given on the INAC website.

Under the Indian Act, the minister of Indigenous and Northern Affairs Canada (INAC) has jurisdiction over the wills and estates of status Indians if:

• the deceased ordinarily lived on reserve at the time of their death, or
• the deceased ordinarily lived on Crown lands at the time of their death.

It doesn't matter whether the deceased lived on reserve when they wrote their will.

The minister must approve the will before before money or property can be distributed to anyone named in the will.

Whether or not the deceased had a will, the minister will appoint the person (such as a relative) who will administer (settle) the estate. This person is the executor.

If your family member has died, it's important for someone in your family to get a death certificate. You need to do this before you take next steps.

What can the executor do?

Once Indigenous and Northern Affairs Canada appoints the executor, the executor has the authority to:

• pay debts
• call in money owed to the deceased
• transfer the deceased's reserve land to those entitled to inherit it (beneficiaries)
• distribute other assets of the estate

Administering an estate on reserve can be complex. Indigenous Services Canada estate officers can help you. They can't give you legal advice. Call:

604-775-5100 (Greater Vancouver)

1-888-917-9977 (elsewhere in BC)

Talk to a lawyer about legal questions you might have. Also see the Government of Canada website.

The most immediate estate-related issues after death are to:

• protect the property of the deceased
• contact anyone the deceased owned money to
• decide who will settle, or become the executor, of the estate

Who will settle the estate?

The first step is to find out if the deceased wrote a will. The will most likely names a person as executor. The executor is the person named in the will who will be responsible for administering (settling) the estate. See the Government of Canada website.

The person named as executor should do a "wills search" with the provincial Vital Statistics Branch to see if the deceased registered their will.

You can start a wills search online. On the Vital Statistics Branch website, click Wills Registry. Under How to apply for a search for a Wills Notice, click Application for Search of Wills Notice. The PDF form to fill out will open.

You need to provide the death certificate to complete the wills search. If the executor can't provide the death certificate, a near relative or other person can do it. There's a fee to do the wills search.

If the deceased was an Indian who lived on reserve, the executor must report the death to Indigenous and Northern Affairs Canada.

The executor should also check with Indigenous and Northern Affairs Canada to see if the deceased gave them the original will for storage.

Indigenous and Northern Affairs Canada no longer accepts original wills for storage. But it continues to store some wills that were made at least 25 years ago. Whenever a death is reported to Indigenous and Northern Affairs Canada, staff search the wills storage vault.

If there's no known will

If you don't know if the deceased made a will, you, as the next of kin, should do a wills search with the provincial Vital Statistics Branch to see if the deceased registered their will.

If the deceased ordinarily lived on reserve

Indigenous and Northern Affairs Canada will confirm whether the deceased lived on reserve.

If the deceased ordinarily lived on reserve at the time of death, the minister of Indigenous and Northern Affairs Canada appoints the person who administers the estate, whether or not there's a will. See the Government of Canada website.

If there's a will

The executor must apply to the minister to have the will approved. If the executor can't do this, a near relative or other person must do it. This is the official confirmation the will meets the formal requirements of the Indian Act. It also confirms the person named as executor (or the substitute) is the proper person to settle the estate.

If there's no will

As a relative of the deceased, you may apply to become the administrator of the estate.

Contact an Indigenous and Northern Affairs Canada estates officer. They'll help you and give you information. The estates officer can't give you legal advice.

If nobody in the deceased's family is able to look after the estate, an estates officer will handle the administration.

After the minister appoints the executor or administrator

Only after Indigenous and Northern Affairs Canada appoints the executor (if there's a will) or administrator (if there's no will), the appointed person can:

• gather and protect the assets
• advertise for debts
• transfer land to the heirs or beneficiaries
• pay debts
• distribute the remaining assets to the heirs or beneficiaries

If the deceased didn't ordinarily live on reserve

If the deceased wasn't ordinarily living on reserve at the time of death, their estate will be administered according to provincial law.

If there's a will

The executor applies to the BC Supreme Court for a grant of probate.

If there's no will

A near relative (or other person) applies to the BC Supreme Court for letters of administration.

Both a grant of probate and letters of administration give the applicant the authority to:

• pay debts
• call in money owed to the deceased
• distribute the estate

Under the Indian Act, the minister may consent to the BC Supreme Court having jurisdiction over an estate. This usually happens at the request of the executor or administrator or where the deceased had significant assets located off reserve.

To inherit an interest in land on reserve, you must be entitled (have the right) to live on reserve where the deceased's land is located at the date of their death. You're entitled to live on reserve if you're a band member.

This means to inherit an interest in land on reserve, you must be a member of the deceased's band at the time of their death.

If you're not entitled to live on the reserve

If the minister of Indigenous and Northern Affairs Canada has jurisdiction over the estate, the superintendent of Indian Affairs must offer your interest in the land for sale. The sale is open only to band members.

If no valid offers are received within six months, the interest in land reverts to the band. But you are compensated (paid) for improvements to the land.

You can avoid a sale of land by the superintendent if:

• you sign an Absolute Disclaimer of Possessory Interest in Reserve Land after the deceased's death
• the estate has significant other assets as well as the interest in reserve land

In these cases, the administrator or executor of the estate might be able to redistribute some or all of the deceased's gifts. The administrator or executor still gives each heir or beneficiary their appropriate share of the estate's value. This means band members inherit the reserve land and non-members inherit other assets.

The new Family Homes on Reserve and Matrimonial Interests or Rights Act gives new rights to survivors.

• If your partner dies, you can stay in the home for at least 180 days (six months). You can apply to live in the home for longer than 180 days. The court takes into account a number of different things when it decides whether you can stay in the home and for how long.
• You can apply to the court under the new Family Homes on Reserve and Matrimonial Interests or Rights Act for an amount equal to half of the value of your deceased's interest in or right to the family home.
• You might also choose to inherit from the deceased's will or under the provisions of the Indian Act.

It's a good idea to get legal advice from a lawyer who's experienced in this area of law.

You can also contact Indigenous and Northern Affairs Canada for information about these options.

If you're a status Indian who ordinarily lives on a reserve or Crown lands, you don't need to follow the formal requirements of the provincial Wills Act (e.g., two witnesses, signed at the end). But it's a good idea to do so to make sure the document is clearly recognized as a will after death.

Many Aboriginal people only need a simple will. There are many general publications on how to write your own will.

But it's a good idea for you to get legal advice if you have special circumstances, such as:

• you own land on reserve, but you don't hold a Certificate of Possession or Certificate of Occupation
• you want to leave reserve land to a non-band member
• you want to leave one or more of your children out of your will