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Wills and estates on reserve

Under the Indian Act, the wills and estates of status and non-status Indians are under the jurisdiction of the Minister of Aboriginal Affairs and Northern Development Canada (AANDC) if:

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

It doesn't matter whether the deceased lived on reserve when the will was written.

The Minister of Aboriginal Affairs and Northern Development Canada must approve the will in order for it to have legal force.

Whether or not the deceased had a will, the minister will appoint the person (such as a relative) who will administer the estate. This person is 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, and
  • distribute other assets of the estate.

Administering an estate on reserve can be a complex process. Aboriginal Affairs and Northern Development Canada estate officers can help people administering estates. However, Aboriginal Affairs and Northern Development Canada estate officers can't provide legal advice.

Aboriginal Affairs and Northern Development Canada (AANDC) is the new name for Indian and Northern Affairs Canada (INAC).

For more information about making wills and settling estates on reserve, see the links below.

 

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I am Aboriginal and want to write a will. What should I do?

If you are a status or non-status Indian who ordinarily lives on a reserve or federal Crown land, you don't need to follow the formal requirements of the provincial Wills Act (e.g., two witnesses, signed at the end). However, you are encouraged to do so to make sure the document is clearly recognized as a will after death.

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

However, it is a good idea for you to get some legal advice if you have special circumstances, such as if you:

  • own land on an Indian reserve, but you do not hold a Certificate of Possession or Certificate of Occupation,
  • want to leave reserve land to a non-band member, or
  • want to leave one or more of your children out of your will.

For more information about writing your will, see the Resources section above.

I am the nearest relative of an Aboriginal person who died. What should I do about their estate?

The most immediate estate-related issues after death are:

  • securing the property of the deceased,
  • notifying creditors and others, and
  • determining who will administer 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, who is the person responsible for administering (settling) the estate.

If there is a will

The person named as executor (or a near relative or other person if the executor is unable) must do a "wills search" with the provincial Vital Statistics Branch to see if the deceased registered their will.

If the deceased is an Indian who lives on reserve, the executor should also report the death to Aboriginal Affairs and Northern Development Canada. The executor should also check with Aboriginal Affairs and Northern Development Canada to see if the deceased provided them with the original will for storage.

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

If there is no known will

You, as the next of kin, must 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

Whether or not there is a will, if the deceased ordinarily lived on reserve at the time of death, the Minister of Aboriginal Affairs and Northern Development Canada appoints the person who administers the estate.

If there is a will

The executor (or a near relative or other person if the executor is unable) must apply to the minister to have the will "approved." This is the official confirmation that the will meets the formal requirements of the Indian Act and that the person named as executor (or the substitute) is the proper person to settle the estate.

If there is no will

You, as a relative of the deceased, may apply to become the administrator of the estate.

Once you are appointed as executor or administrator, you have the authority to:

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

An executor or a near relative should contact an Aboriginal Affairs and Northern Development Canada estates officer who will provide information and assistance to you.

The estates officer cannot provide legal advice. If nobody in the deceased's family is able to look after the estate, an estates officer will handle the administration.

If the deceased did not 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 is a will

The executor applies to the BC Supreme Court for a "grant of probate" (official confirmation given by the court that the person named as executor is the proper person to settle the estate), or

If there is 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, and
  • distribute the estate.

Under the Indian Act, the Aboriginal Affairs and Northern Development Canada 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.

For more information about administering an estate, see the Resources section above.

What should I do if I am the beneficiary of land on the reserve of a band of which I am not a member?

In order for you as beneficiary or heir to be able to inherit an interest in land on reserve, you must, at the date of the deceased's death, be entitled (have a right) to live on the reserve where the deceased's land is located.

You become entitled to live on a reserve at the time you become a band member. To be able to inherit an interest in land on reserve, you, as an heir or beneficiary, must be a member of the deceased's band at the time the deceased passes away.

If you are not entitled to live on the reserve

If the Minister of Aboriginal Affairs and Northern Development 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 members of the band.

If no valid offers are received within six months, the interest in land will revert to the band, but you will be compensated 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.
  • If the estate has significant other assets as well as the interest in reserve land.

In these cases, the administrator or executor of the estate may be able to reallocate some or all of the gifts made by the deceased (while still giving each heir or beneficiary their appropriate share of the value of the estate), so that band members inherit the reserve land and non-members inherit other assets.

Where to get help

To get help with these matters, contact the BC Region Estates Unit of Aboriginal Affairs and Northern Development Canada at 604-775-5100 or 1-888-917-9977 (call no charge), or email. You may also want to speak with a lawyer.

 

 

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