Why is it important to have a will?
A will is a document that leaves instructions about what you want done with your personal possessions and land after you die.
Why should you have a will?
If you die without a will on-reserve (also called "dying intestate"), the Indian Act determines how your assets will be distributed, not you or your family. Without a will friends, charities, or other beneficiaries cannot inherit from your estate. Only family can inherit.
Having a will ensures that your wishes will be carried out. It will ensure that your loved ones are provided for. Be sure to consider making arrangements for care of your children and pets. Consider all of your possessions when making a will (e.g., money, vehicles, books, pieces of art, furniture, land, livestock and keepsakes). You can only gift your land to someone who is a member of your First Nation.
Writing a will is free, unless you go through a lawyer (or a notary in Quebec). It doesn't have to be complicated.
By making a will, you can:
- provide for your loved ones, your children and grandchildren
- decide who will get your home and property
- clearly state who should receive your personal possessions (such as jewellery, vehicles and money)
- leave instructions about who will take care of your children and dependents
- leave instructions for end of life ceremonies
- name who will take care of your estate
A will may:
- avoid delays in settling your estate
- reduce administrative paper work for your family at a difficult time
- make the settlement of your estate a more personal matter
- provide peace of mind and clear direction about your wishes to your family and loved ones
- reduce INAC's involvement in your private affairs
What needs to be in a will?
The Indian Act outlines what should be included in your will.
If you live on-reserve, a valid will must:
- be in writing (you can write your own or use a form available from various sources, e.g., will kits, websites)
- be signed and dated by you
- state what you want done with at least one of your possessions
- state that it takes effect after your death
Ideally, a will should also:
- be signed by two people who witnessed you signing your will
- Your witnesses should be adults who are not beneficiaries or the spouse of a beneficiary.
- name someone that you want to be your executor
- list the full names and addresses of your beneficiaries
- list all of your assets and where they are located
- assets include all of your property and personal possessions and effects for example, land, bank accounts, jewellery, commercial licenses, crops, animals, investments, vehicles and buildings
- list all of your debts, how much they are worth and who holds them
- list your wishes regarding who should inherit each of your assets
- list the other items that you wish to give to specific people, including special items of sentimental value
- leave instructions for who should care for your children and dependents
Do you possess land on-reserve?
If you possess land on reserve, you may wish to include directions in your will for how the land should be divided after your death. The Indian Act states that you can only gift your land to someone who is a member of your First Nation.
The transfer of land can be affected by the Family Homes on Reserves and Matrimonial Interests or Rights Act or by your First Nation's laws about matrimonial real property on reserves. Your band council should be able to help clarify what laws apply to your situation.
When should you make changes to your will?
You can change your will as often as you like. In fact, it is a good idea to read it over from time to time to make sure it is accurate and up-to-date.
You should change your will when:
- you have a child or grandchild
- you get married, divorced, or enter into a common law relationship
- you move to a new address
- someone mentioned in your will dies
- you acquire new valuable property or possessions
You should always date and initial all changes or additions and have them witnessed.
Do you need a lawyer to make a will?
You do not need to have a lawyer (or notary in Quebec) to help you write your will. However, you may wish to consult one if your estate is complicated. For example, if you:
- have children or you care for someone who has special needs
- have property or possessions of significant value
- own property
- own a business
Where should you keep your will?
After your death, INAC will need to have the original will to help settle your estate. You may wish to keep your original will in a safe place such as:
- a safety deposit box
- a fireproof box
- a home safe or a safe at the band council office
- a lawyer or notary's office
- with a trusted friend/family member
You should tell your executor or someone you trust where you stored your will. Banks will usually allow your executor to take your will from a safety deposit box.
If you live on-reserve and need more information on making a will, please contact INAC Public Enquiries.
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