Wills & Estates for First Nations People – Part 2
October 22nd, 2021 by Alexandra Philippot
Part 2: Estates
Note: The word “Indian” is used in this document only to reference the language used in the Indian Act. The term Indigenous refers to individuals who self-identify as Métis, Inuit or First Nations (Status or non-Status). The proper term to describe someone who has historically been named an “Indian” is First Nations.
This article is a continuation of the article entitled “Part 1: Wills.”
The death of a loved one can be extremely difficult and for executors of the estate, often comes with many responsibilities.
What happens after death?
Upon the death of a First Nations person ordinarily living on reserve or Crown Land, the procedures for administering an estate are governed by the Indian Act and the Indian Estates Regulation.
Some preliminary steps include:
- (1) Obtaining a Death Certificate;
- (2) Locating the Will;
- (3) Notifying Indigenous Services Canada
- Once the original Will has been located and the Death Certificate has been received, Indigenous Services Canada must be told of the death. The person’s Indian Registry number (the number that appears on their Status card), the name of their First Nation, a copy of the Death Certificate and the original Will must all be sent to the Estates Unit at Indigenous Services Canada. The original Will is returned to the executor after it has been approved.
- (4) Indigenous Services Canada’s Involvement
- Indigenous Services Canada first confirms with the deceased’s First Nation that the deceased was both a registered “Indian” and “ordinarily resident” on reserve at the time of their death(Please see Part 1: Wills for more information).
- Indigenous Services Canada also searched the Indian Land Registry to see if the deceased had a registered interest in reserve land. Note: This does not include traditional land holdings, as traditional land holdings are not included in an estate.
- (5) Obtaining Approval from Indigenous Services Canada
- A will is not valid until it has been approved by the Minister of Indigenous Services. For a will to be approved under Section 45 of the Indian Act, it must be written, signed by the testator and specify the wishes or intentions of the testator as to the disposition of property and it must be intended to take effect upon death.
- The Will has to be approved by Indigenous Services Canada after the person is deceased.
- If there is a Will and the Will names an executor, Indigenous Services Canada asks the executor to apply to administer the estate. In most cases, the executor will be appointed and the Will will be approved. The Will cannot be acted on until Indigenous Services Canada has approved it.
Under section 46(2) of the Indian Act, if the Will is declared by the Minister to be void, the person who executed the will is deemed to have died intestate.
What happens if the deceased does not have a Will?
When an individual dies without a Will, they are said to have died intestate. In Manitoba, The Intestate Succession Act typically applies to Manitobans who die intestate. However, it does not apply to status First Nations people who are “ordinarily resident” on a reserve or Crown Land. Instead, the intestate distribution scheme is as set out in the Indian Act.
If there is no Will, Indigenous Services Canada writes to the deceased’s family members and asks for someone to step forward to be the administrator of the estate. If nobody volunteers, a staff member at Indigenous Services Canada becomes the administrator of the estate.
Spouses, children, grandchildren, great grandchildren, parents and brothers and sisters can inherit (in that order) the deceased’s assets, but if the only next-of-kin are nieces and nephews, they cannot inherit an interest in CP land on reserve unless the land is left to them in a written Will. If there is no Will and the only people entitled to inherit a deceased person’s CP land are nieces and nephews, the CP land is returned to the Band.[1]
Family members who are not registered First Nations and who are not living or entitled to be living on that reserve cannot inherit CP reserve land either. It should be noted that with a Will, First Nations can leave CP land to any family member as long as they are able to inherit the CP land (they must be members of the band).
There are many intricacies involved when preparing Wills and administering estates for First Nations. It is important that the proper procedures and requirements are followed, so the deceased’s wishes and intentions can be carried out.
[1] Section 48(8) of the Indian Act
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