Wills and estates on reserve are different from wills and estates off reserve for status Indians who ordinarily lived on reserve at the time of their death. This also applies to status Indians who ordinarily lived on Crown lands at the time of their death.
It doesn't matter whether they lived on reserve when they wrote their will.
Under the Indian Act, the minister of Indigenous and Northern Affairs Canada (INAC) has jurisdiction over the wills and estates of status Indians if:
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.
Once Indigenous and Northern Affairs Canada appoints the executor, the executor has the authority to:
Administering an estate on reserve can be complex. Indigenous and Northern Affairs Canada estate officers can help you. Call 604-775-5100 (Greater Vancouver) or 1-888-917-9977 (no charge outside Greater Vancouver). But Indigenous and Northern Affairs Canada estate officers can't provide legal advice. Talk to a lawyer about any questions you might have. See Who can help? at the bottom of the page.
It's a good idea to read Estate Administration On-Reserve: A Guide for Executors and Administrators in British Columbia. It gives detailed information about how to settle the estate of a status Indian who ordinarily lived on reserve. See the link on the right-hand side.
The most immediate estate-related issues after death are to:
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.
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 will 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 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.
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.
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 that the will meets the formal requirements of the Indian Act. It also confirms that the person named as executor (or the substitute) is the proper person to settle the estate.
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 will help you and give you information. The estates officer can't provide legal advice.
If nobody in the deceased's family is able to look after the estate, an estates officer will handle the administration.
Only after Indigenous and Northern Affairs Canada has appointed the executor (if there's a will) or administrator (if there's no will), the appointed person can:
If the deceased wasn't ordinarily living on reserve at the time of death, their estate will be administered according to provincial law.
The executor applies to the BC Supreme Court for a grant of probate.
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:
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 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 will be open only to band members.
If no valid offers are received within six months, the interest in land will revert to the band. But you will be compensated (paid) for improvements to the land.
You can avoid a sale of land by the superintendent if:
In these cases, the administrator or executor of the estate may be able to redistribute some or all of the gifts made by the deceased. The administrator or executor would still give each heir or beneficiary their appropriate share of the value of the estate. 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 provides new rights for 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 will take 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 may 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. See Who can help? at the bottom of the page.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:
See Who can help? at the bottom of the page.
Aboriginal Financial Officers Association of BC — See their booklet Writing Your Own Will: A Guide for First Nations People Living on Reserve or call 1-888-917-9977 (no charge) or email
BC211 — Free confidential referrals to help and information — Call 211
BC Association of Friendship Centres — Find a friendship centre in your area
Ministry of Aboriginal Relations and Reconciliation — See their A Guide to Aboriginal Organizations and Services in British Columbia for organizations that can help
PovNet — Information about poverty issues and links to organizations that can help
Aboriginal community legal workers — Give legal information and limited advice services
Canadian Bar Association British Columbia Branch — Gives free legal information — Call 604-687-4680 (Greater Vancouver) or 1-800-565-5297 (no charge outside Greater Vancouver)
Legal information outreach workers — Give legal information and provide referrals
Access Pro Bono Law Clinics — Free legal help
First Nations and Métis Outreach Program (The Law Centre) — Free legal help — Victoria
Bella Coola Legal Advocacy Program — Free legal help — Bella Coola
UBC Indigenous Community Legal Clinic — Free legal help on various legal matters — 604-684-7334 (Greater Vancouver) or 1-888-684-7334 (call no charge)
Upper Skeena Counselling & Legal Assistance Society — Free legal help — Hazelton