WILLS AND ESTATES UNDER THE INDIAN ACT: AN OVERVIEW

GENERAL BAND MEETING MARCH 24 TH , 2011

INAC ROLE
INAC acts for Minister of Indian Affairs pursuant to the Indian Act :

1. Approving wills and confirming the appointment of Executors

2. Settling the estates of people who have died when nobody in the family is able to do so 3. Managing the finances of people who are unable to do so because of mental incapacity 4. Handling money for minors

YOUR ROLE
Planning for your own passing as well as planning for the possibility of you being incapacitated are two of the most important things you need to do in life.

You need to make sure that your wishes are expressed properly in the event you cannot speak for yourself.

You need to ensure that your estate is handled as quickly and as cheaply as is reasonably possible.

WHERE THE INDIAN ACT APPLIES

For Indian Act rules to apply you must be:

1. Status 2. On reserve a. This includes people living on reserve but away for a period of time to god to school or for seasonal employment. b. This also includes people whos home is on reserve but have to leave to go into a care facility off-reserve c. This does NOT include status First Nations people who live off reserve or non-status residents of a reserve.

YOUR ESTATE
Your estate consists of what you own minus what you owe. Assets: Land Vehicles

Investments
Bank accounts

Liabilities:
Loans Credit Cards Lease payments

IF YOU DIE WITHOUT A WILL

If you dont make your own Will, Sections 48 and 50 of the Indian Act are effectively going to be your government imposed Will.

This makes assumptions about who should be provided for and may not (probably will not) reflect your actual wishes.

It also creates an administrative headache for your loved ones and the people that you leave behind. For example, you dont indicate who is in charge, what you want done with your possessions and the final distribution of your estate.

IF A FAMILY MEMBER DIES WITH A WILL

NON-BAND MEMBER BENEFICIARIES

If you are a band member and: you have no will you have no children and your closest next of kin are nieces and nephews

Then any reserve land you have must be transferred to the band.

If your beneficiary or next of kin is not a band member, will or no will, your share of the land in question has to be sold and the Superintendent of Indian affairs gives them the sale proceeds and not the land itself.

WHERE A WILL HELPS

Having a will allows you to:

Give a gift to a friend or more distant blood relative

Leave something to a step child or a child you have raised but not legally adopted Give more to a more needy family member Choose who looks after your estate

Name a guardian for any children not yet adults

Avoid some of the Indian Act Provisions that might apply to your land.

DOCUMENTS YOU WILL NEED

1. Full names and band membership information for all the people named in your will 2. Parcel abstract report for any reserve land interests you have 3. List/description of all: a. b. c. d. e. Vehicles/Boats/ATVs recreational vehicles etc. Business or work equipment and machinery Insurance policies and pension funds Bank accounts (including account numbers. Debts/CreditCards/car loans including whether or not any of them are life insured.

MAKING THE WILL LEGAL

1. To make a will you must be: 1. Age 19 or older 2. Have mental capacity to make a will 3. Free from duress or undue influence

The will must be: 1. In writing 2. Signed by the will maker 3. Give clear instructions as to
a. Who is in charge (Executor) b. Who gets what property after your death

EXECUTOR
1. Your executor should be: 1. 2. 3. 4. 5. Trustworthy Able to work on his/her own In good health Able to manage the paperwork involved Able to communicate with and be respectful to all your beneficiaries

You may want to name an alternate executor in case your first choice is unable or unwilling to act on your behalf.

EXECUTOR DUTIES
Generally speaking your executor: 1. 2. 3. 4. 5. 6. 7. Makes funeral arrangements with your family Gets your will approved by INAC Contacts everyone named in the will Claims death benefits available Looks after your property until it is transferred Sees that your debts are paid Distributes property in your estate in accordance with your will 8. Provides an accounting of funds to beneficiaries 9. Notifies everyone who needs to know about your death
a. b. c. Employer Hydro/phone/cable Government agencies

OTHER DOCUMENTS YOU NEED

1. Power of Attorney 1. This is a written, signed document in which you:
1.
2.

3.

appoint another person to make financial and legal decisions for you. The powers you give can be limited to a few specific powers for a short time or you can give a general Power of Attorney for all financial and legal purposes.

This deals with the financial side of your affairs and would allow your attorney to cash cheques, make deposits, pay bills and otherwise take care of your business affairs.

REPRESENTATION AGREEMENTS
A Representation Agreement is a written, signed document in which you:

appoint someone to speak and act for you with you cant speak and act for yourself because of illness, accident or disability. It is broader than a Power of Attorney and can cover health care decisions as well as financial and legal decisions.

You can limit a Representation Agreement to your care and medical matters (not financial and legal matters), but you cannot expand a power of attorney to include medical and personal care decisions.

SUMMARY
1. Every band member of adult age should have a will

2. Every band member should have a document that addresses what would happen if they were incapacitated
1. Stroke 2. Car Accident 3. Mental Disability (Alzheimers.for example) Sample documents can be obtained from the band office or online at: www.afoabc.org (look under What We Do then under Resources or Publications)

SAMPLE WILL (TO SPOUSE)

OTHER RESOURCES
Estate Administration on Reserve: A Guide for Executors and Administrators in BC Available from the Estates Unit at INAC-BC Region

INAC Estates Unit

Toll Free: 1-888-917-9977

Email: Bcestates@inac-ainc.bc.ca Individual Land Holdings:

Toll Free: 1-888-917-9977

Electronic Versions of Brochures are also available through the band office

THANK YOU
Questions?