It can be hard to discuss sensitive topics like death. But making an estate plan will ensure that someone’s estate is looked after, their family is protected, and their wishes are respected when they pass away.
When creating an estate plan, Indigenous Peoples of Canada should consider key factors such as their group affiliation, whether they reside on or off a reserve, and their registered status.
In this article, we’ll provide a comprehensive guide to estate planning for Indigenous Peoples of Canada, including topics such as the Indian Act and wills, how the act influences estate distribution with and without a will, how status and residence influence the estate planning process, and key differences in estate planning across different groups such as the Inuit, First Nations, and Métis peoples.
Understanding the Indian Act and its implications
The Indian Act is a historically controversial Canadian act of Parliament concerning First Nations persons entitled to registration, their bands, the system of reserves, and how the Government of Canada interacts with the 614 First Nation bands across the country.
In addition to outlining how reserves and bands can operate, the act also defines who can and cannot have registered status, as well as how Indigenous Peoples of Canada can create an estate plan.
Who does the Indian Act affect?
The Act applies exclusively to those who qualify as an “Indian” under the act itself, meaning any First Nation person who is entitled to registration. It does not extend its provisions to Inuit or the Métis peoples.
The Act defines two governmental bodies responsible for facilitating the estate services of First Nations peoples. The first is Indigenous Services Canada (ISC), which is responsible for all provinces. The other group is the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), which is responsible for the territories of Nunavut, Yukon and the Northwest Territories.
Estate planning for Inuit or the Métis peoples
The laws governing the wills and estates of Inuit and the Métis peoples are the same laws of the provinces and territories in which they live. We discuss this more later in the article.
How does status affect estate planning?
The ISC or CIRNAC only become involved in handling estates for status First Nations peoples who are “ordinarily resident”, meaning they:
- Usually live on a reserve, and
- Have a primary residence on reserve, or
- Only live off reserve for temporary circumstances such as education, to obtain care, or to obtain other services not available on a reserve
What can an Indigenous person include in their will?
Your will is the outline of your wishes for your estate, and your estate includes all the property and personal possessions that you own.
Your estate may include any of the following solely owned assets:
- Cash
- Bonds
- Investments
- Bank accounts
- Settlement money
- Work benefits
- Earnings
- Pensions
- Personal items such as jewelry
- Vehicles
- Solely-owned land and buildings*
*You cannot include any land or buildings owned by a First Nation in your will, as they are not part of your estate.
When you make your will with Willful, you can:
- Choose an executor to manage and distribute your estate
- Appoint a guardian for your dependant children
- Name beneficiaries to gift assets to
- Leave gifts to causes you support
- Outline your burial or funeral arrangements and explore provincial legislation regarding burial grounds
- For example, Ontario has the Funeral, Burial and Cremation Services Act
How does the Indian Act define a legal will?
According to section 45(2) of the Act, a valid legal will for a First Nation person living on a reserve must be:
- In writing
- A documentation of the wishes of the person writing the will with respect to how their property should be dispersed or disposed of
- Signed by the person who is creating the will
The difference between what qualifies as legal wills for status and non-status Indigenous Peoples and what qualifies as legal wills based on provincial laws versus the Act are important things to keep in mind.
For example, a will like a Willful will, which is legally valid based on provincial requirements (such as being a physical document signed in wet ink and witnessed by two witnesses), can cover both status and non-status Indigenous Peoples and meet Act requirements.
On the other hand, a will that only meets the basic requirements set by the Act, and was not signed in the presence of witnesses, may not be legally valid if the person dies outside of a reserve.
Are estates of Indigenous Peoples subject to probate?
Estate administration for Indigenous people, as well as whether an estate goes through probate or not, depends on the status of the individual who passed away, where they were living when they passed, and the complexity of their estate.
Here’s a helpful graphic to see whether an estate may require probate or not.
What happens if you pass away without a will on a reserve?
If someone who is a registered First Nation person passes away without a will while living on a reserve, the ISC or CIRNAC will appoint someone to manage their estate, a role which is known as an administrator.
If that same person were to instead pass away without a will while living outside of a reserve, their estate would be handled by the government of their province or territory. The local probate court will then appoint someone to act as the estate administrator, and their assets will be distributed based on provincial inheritance laws.
It’s important to note that this appointed administrator might not be the person the deceased person would have chosen to manage their estate, and it might not be a person with their best interests (and the best interests of their loved ones) in mind.
By making a will, a person can name an executor to manage their estate. Learn more about the role of an executor and how to choose one for your estate.
Estate planning variations across provinces and Indigenous communities
Each province has its own set of rules for wills and estates, impacting Indigenous Peoples differently based on their status and where they live.
Here's an example breakdown of how the estate planning of different communities may be affected by the Act or other legislation.
Land transfers and property management on reserve
For Indigenous Peoples living on reserves, there are specific land transfers and property management guidelines that should be followed.
On-reserve land inheritance needs approval from the ISC or CIRNAC. In order to get approval, the transfer of land must comply with the Act or specific land codes and agreements.
Transfer of land is outlined under section 24 of the Act, which states that reserve land may be transferred to the band or another member of the band, but possession cannot be complete until the transfer and Transfer of Land form is approved by the Minister of Indigenous Services.
How to create your estate plan in Canada
Step 1: Determine your status and residence
Do you have registered status? Do you live on or off reserve? These are questions you should keep in mind when estate planning, as they will influence which laws apply to your estate.
Step 2: Choose key people for your estate plan
Which loved ones should be a part of your estate settlement? If the first person you think of isn’t available, who will be your backup? There are various roles involved in an estate plan, and it’s important to choose the right person for each role.
Executor and Estate Trustee: Often a spouse, relative or close friend, your executor and estate trustee is someone who can be trusted to execute the wishes outlined in your will, distribute your estate to your beneficiaries, and act on your behalf for your business and financial interests when you pass away.
Guardian(s): Usually a family member or friend, a guardian is someone you can trust to assume legal, moral, and financial responsibility for your dependent children if you and any other existing guardian pass away. It can be a single person or a couple.
Beneficiaries: A beneficiary is anyone whom you name in your will to receive assets (such as money, real estate, jewelry, art, or mementos).
Attorney for personal care: Often a spouse, family member, or close friend, your attorney for personal care is someone who is able to make health and personal care decisions on your behalf in the event that you are unable to communicate or make decisions yourself.
Attorney for property: Unlike an attorney for personal care, an attorney for property can only make decisions about your property and finances. You can choose how much decision-making power they have and when they can use it, but it’s important to choose someone you can trust and rely on to act in your best interests.
Step 3: Discuss your wishes with family and appointees
Talk with the people you want to appoint in your estate plan and see if they are willing to take on the roles. Certain roles, such as executor, guardian, and attorney, may require a lot of time and effort, and it’s important that your chosen individuals are aware of what their responsibilities would be.
Step 4: Create your will
Once you’ve decided who should be appointed in your will and how you’d like to distribute your assets, it’s time to document your wishes.
There are multiple ways you can make a will, such as handwriting one or seeking out a lawyer, but the easiest and most affordable way is to use an online will platform like Willful.
Willful is an online estate planning platform that allows you to easily complete your estate plan, including a will, power of attorney documents, and more, from the comfort of your own home in just 20 minutes.
Willful also guides you through how to sign and witness your documents to make sure they are valid based on the legal requirements of your province.
Download our Checklist for Creating a Will & Estate Plan in Canada →
Step 5: Make your will legal
Unless you live in British Columbia and would like to make a digital will, you must print your will and sign it in front of two valid witnesses. The witnesses must then sign the will to confirm they have witnessed your signature.
After that is complete, your will is legally valid!
Step 6: Store your documents in a safe place
Now that you have a legally-valid will, it’s time to keep it somewhere safe. The original copy of your will should be stored somewhere that is known and accessible to your executor.
If you’d like to keep it at home, you can store it in a fireproof box or a safe. Wherever you choose, make sure to keep it somewhere moisture-free and away from direct sunlight or anything that can impact the paper and ink.
You can also store it in a safe deposit box at your bank.
Wherever you decide to store your will, it’s important to keep loved ones informed of its whereabouts.
Step 6: Register your will on CanadaWillRegistry.org
By taking the extra step to register your will with the Canada Will Registry, you help make sure your will can be found if your executor ever forgets where it is. Some provinces like BC and Quebec also have their own provincial will registries.
Protect your loved ones with an estate plan
Your estate plan is more than just your legacy – it can protect your family and loved ones after you pass on. By choosing an executor and documenting how you want your estate to be distributed, you ensure your family’s best interests will be taken care of.
