Administering an Indian Act Estate: General Information for Administrators

Author: Aboriginal Affairs and Northern Development Canada
Date: 2012
QS: QS-4016-001-BB-A1
Catalog: R3-163/2012E-PDF
ISBN: 978-1-100-20340-9
PDF Version   (4,487 Kb, 24 Pages)

Table of contents

Introduction

This booklet provides information based on the Indian Act on how to administer an estate of an Indian who lived on reserve or on Crown lands when he or she died.

Generally, if an Indian lived on reserve when he or she died, the Minister of Aboriginal Affairs and Northern Development Canada (AANDC) appoints an administrator or executor for this person's (the deceased) estate; if an Indian lived off reserve when he or she died, the provincial/territorial/state courts appoint an administrator or executor. More information can be obtained by contacting the provincial/territorial/state court offices where the person resided when he or she died.

The Indian Act, in particular the estates sections 42-50.1 and the Indian Estates Regulations, give the Minister of AANDC the authority to approve a will, declare a will to be void in whole or in part, and appoint an administrator or executor of an estate.

Definitions

Who is an Indian?

A person who, pursuant to the Indian Act, is registered as an Indian or is entitled to be registered as an Indian.

What is an estate?

An estate includes real (immovable) property, (e.g., land and buildings or structures), and personal (movable) property, that someone owned or had in their possession when they died. Anyone who owns something has an estate. These assets can include items such as: a home, car(s), bank accounts, stocks, bonds, mutual funds, life insurance policies, retirement plans, business interests, furniture, jewellery, art work and collections.

What is a will?

A written document that gives instructions on what is to be done with an estate after death. If someone dies without a will, section 48 of the Indian Act sets out how the estate will be distributed. If someone dies without a will it is called dying intestate. For additional information consult the AANDC publication, What is a Will and How Do I Make One?

Who is an administrator?

A person appointed (by the Minister) to administer an estate. If there is no will or no one is stated in the will the Minister will appoint someone to handle all the legal and financial matters of the deceased's estate. It is not possible to have more than one appointed administrator.

Who is an executor?

A person named in the will to administer (handle all the legal and financial matters) the deceased's estate and to ensure that the details of the will are carried out. This is the same as an administrator or a personal representative. It is possible to have more than one executor named in a will.

Who is a beneficiary?

Persons (e.g., child, cousin, or friend) or organizations (e.g., church or animal shelter) specifically named in the will to inherit from the estate.

Who is an heir?

Person(s) who may inherit from the estate of someone who died without a will (e.g., spouse, children, parents, and other relatives).

When a Family Member Dies...

  1. Notify the Department of Aboriginal Affairs and Northern Development Canada
    We will ask for some basic information such as the deceased's name and date of death, Indian Registration Number and First Nation. This will help us determine if the Minister has authority over the estate. If the Minister has authority, we will ask you to send us the Death Certificate and the original will, if a will was made. All originals will be returned to the family.
  2. Determine if there is a will
    You must make some efforts to determine if there is a will. This may include looking through the deceased's records, or asking the band office, family members, local banks or lawyers to search for a will. If the deceased lived in Quebec, contact local notaries or the "Guichet unique pour recherches de dispostions testamentaires et de mandats" (a central registry of wills).
  3. If there is a will the Minister must approve it
    The Minister of Aboriginal Affairs and Northern Development Canada (AANDC) must approve the will. If there is no will, or the Minister cannot approve the will, or the will has been challenged and declared void, then the estate will be distributed according to the Indian Act. Contact the AANDC regional office for further information on this process.
  4. The Minister appoints an administrator or executor
    A will usually names an executor and that person is appointed by the Minister. If there is no will, then we refer to the Indian Act to determine who the heirs are and try to find an heir who wants to administer the estate. The administrator or executor is appointed by the Department of Aboriginal Affairs and Northern Development Canada (AANDC) to gather, protect and distribute the estate to those entitled. Once an administrator or executor is appointed by AANDC the department is not involved in the day to day administration of the estate.

What Does An Administrator Do Once Appointed?

Responsibility of an administrator (executor)

Once appointed, an administrator or executor is entirely responsible for the administration of the estate and is accountable to the heirs or beneficiaries. The Minister of AANDC still has the authority to review and address concerns and complaints, review requests for voiding a will, remove an administrator or executor and review the administration.

Over the course of the administration, the administrator or executor may be required to gather and protect the assets of the estate, pay debts (an obligation to pay money) of the estate from the estate assets, determine the heirs or beneficiaries and distribute the assets among them. The administrator or executor should seek independent legal advice as needed, especially if there are legal issues related to the estate.

NOTE: Be sure to keep the administrator appointment document received from AANDC. This document will be required as proof to various institutions that you are legally allowed to administer the estate. It is also helpful to give copies of the notice of your appointment as administrator or executor and the deceased's will (if there is one) to each heir or beneficiary.

Handling The Estate

What is an Estate?

An estate includes real (immovable) property (e.g., land and buildings or structures) and personal (movable) property that someone owned or had in their possession when they died. Anyone who owns something has an estate. This includes such things as a home, cars, bank accounts, stocks, bonds, mutual funds, life insurance policies, retirement plans, business interests, furniture, jewellery, art work and collections.

Initial Considerations:

Is there a minor or dependant adult heir or beneficiary?

The property of minor and dependant adult heirs and beneficiaries should be protected by a representative. Contact your AANDC regional office for further information.

Are there issues that may need a court's directions?

If the administrator or executor requests it, the Minister of AANDC may transfer his authority to a provincial/territorial court to make decisions on an estate. The court will still apply the Indian Act; however, the court has other powers that may be of benefit to estate administration, including subpoenas, the production of evidence, or direction when a business or large assets are involved.

Is there a life insurance policy?

The administrator or executor should determine if the deceased had a life insurance policy and whether a beneficiary was specifically named. If a beneficiary is specifically named in the policy, then the proceeds of the policy are not part of the estate. If no beneficiary is named, then the proceeds of the policy usually form part of the deceased's estate. For more information, contact the deceased's insurance provider.

Are there any retirement funds?

The administrator or executor should determine if the deceased had any retirement funds (these include pensions other than the Canada Pension Plan's registered retirement savings plans and other retirement income funds) and whether those funds were held jointly (for example, with a spouse) or named a beneficiary. For more information, contact the deceased's former employer and/or the financial institutions in which the retirement funds were held.

What the Estate May or May Not Include:

Death Benefits:

The Canada Pension Plan (CPP) provides contributors' families with survivor's, death and children's benefits. The deceased's dependents (widow and/or minor children) may be eligible to receive a benefit from CPP and the estate may also be eligible to receive a lump sum death benefit. If the deceased was 65 or older and receiving Old Age Security, the spouse or common-law partner of the deceased may be entitled to an Old Age Security allowance or widow's allowance. Contact Service Canada   for more information.

Proceeds from Legal Actions

Proceeds awarded in legal actions that are started either before or after the death form part of the deceased's estate (e.g., lawsuit for motor vehicle accident (except in Québec), or wrongful death, etc.).

Personal Effects:

These may include clothes, ceremonial items, traditional items, jewelery, and decorations. These smaller items are usually found in the deceased's home(s) and/ or a safety deposit box at a bank.

Personal (Movable) Property:

This includes everything owned by the deceased that is not a house, real estate or personal effects, for example, money, bonds, vehicles, equipment, and furniture.

Real Estate on Reserve:

If an heir or a beneficiary is not a band member, he or she may not be able to inherit the real estate itself. You should determine which heirs or beneficiaries are not members of the same band as the deceased. Also, determine how the land was held or possessed by the deceased (certificate of possession, renter, lessee, etc.) and whether the deceased was earning income on the real estate (renting it out, leasing it, etc), especially note if the deceased was receiving lease moneys. For more information, contact the band office and the regional AANDC Lands Program.

The Following Do Not Generally Form Part of the Estate:

Joint bank accounts, bonds and investments

Bank accounts, bonds and/or investments that are jointly registered or that name a beneficiary pass directly to the named individual and are not part of the estate. For more information, contact the relevant financial institution(s) and/or the deceased's financial advisor.

Joint Tenancy of Property

A property that was set up as a "joint tenancy" is not usually part of the estate. In a joint tenancy, when one of the joint tenants dies, the property passes directly to the surviving joint tenant. The Band office or Regional Lands Program of AANDC, may be able to assist with determining whether or not a property is held as a "joint tenancy". Note that "joint tenancy" is not recognized in Québec although AANDC continues to respect existing joint tenancies on the Akwesasne Reserve, as an exception.

Band Land

Band land may not be part of the estate. If the deceased tries to give away, in a will, the band land or home that he or she had occupied, contact the band for further instructions.

Some Good Practices of an Administrator

Each estate is unique and may have different tasks involved in its administration.

Estate Bank Account

It may be helpful to open a new bank account that will be used only for estate matters. Such an account allows the administrator to write cheques and keep track of all deposits and payments made when dealing with the estate. After you have finished distributing the estate, you should close the estate bank account. It is important to keep accurate, detailed records of all transactions to satisfy the beneficiaries, heirs, and AANDC.

Insurance & Care

Continue or obtain insurance for vulnerable parts of the estate (e.g., house, car, boat, livestock). Ensure that buildings of the estate are maintained and that livestock are cared for.

Funeral Arrangements

Because an administrator may have access to the deceased's records, you would be in a position to assist in locating any information on prepaid funeral expenses or information on the deceased's wishes regarding burial or cremation.

Identifying the Heirs/Beneficiaries

If the deceased left a will, the beneficiaries to the estate are the people specifically named in the will. If no will was left, section 48 of the Indian Act sets out how the estate should be distributed amongst the heirs. Heirs may include:

  • legal or common-law spouse of the deceased;
  • children of the deceased (including children conceived but not yet born or born after the death and legally or custom adopted children);
  • grandchildren;
  • parents of the deceased;
  • brothers and sisters of the deceased;
  • grandparents of the deceased;
  • nieces and nephews of the deceased; and
  • other next of kin of the deceased (e.g., cousins, aunts, uncles).

Notifying Information for Administrators

The following offices and institutions may need to be notified of the death and of your appointment as administrator (there may be costs involved in requesting documentation):

  • federal (Canada Revenue Agency, Health Canada, Passport Canada, Fisheries and Oceans Canada, Transport Canada, etc.) For more information on federal service providers;
  • provincial (Ministry of Transportation, Ministry of the Environment, Ministry of Health, Vital Statistics Office, Registered Disability Savings Plan, etc.);
  • municipal (library, schools, etc.);
  • band office and regional AANDC office;
  • Service Canada (social insurance number cancellation, Old Age Security and Canada Pension Plan benefits, etc.);
  • employer(s) or volunteer groups;
  • financial institutions (banks, credit unions, credit card companies, etc.);
  • utilities & services (hydro, gas, water, phone, internet, cable, cell phone);
  • maintenance contracts (housecleaning, landscaping, snow removal, etc.);
  • memberships & subscriptions (gym, magazines, clubs, etc.);
  • insurance companies; and,
  • Canada Post (mail re-direction).

Determining & Paying Debts

Before heirs or beneficiaries can receive proceeds from an estate, the deceased's debts should be settled. The funeral bills are usually paid out of the estate first if they have not been previously paid. To figure out to whom the deceased owed money or property (debts), you should "advertise for creditors" in newspapers and post notices in post offices, the band office and in other public places where the deceased was usually seen. After you post these notices, those owed money by the deceased will have eight weeks to notify you of their claim. You should keep invoices, receipts and releases from creditors that show that you have paid off the deceased's debt. If there are not enough assets in the estate to pay off the debts items may need to be sold. Keep in mind that the administrator is not personally responsible for paying the estate debt and the money should come from the estate.

Selling Assets

If there is not enough cash in bank accounts or if there are items that cannot be divided among creditors, heirs and/or beneficiaries, some of the estate assets may have to be sold for cash. There are many ways to sell things and you should try to get a reasonable or fair price for the items sold. For on reserve land and for larger or complex sales (e.g., a house or business), you may wish to speak with a lawyer.

Income Tax

The administrator or executor is personally responsible for paying all income taxes (from the estate) owed by the deceased to the Canada Revenue Agency. The distribution of all estates assets should be held until you obtain a Final Clearance Certificate from Canada Revenue Agency and a Certificate Authorizing Distribution for Quebec estates. If you fail to do so, you may be personally responsible for paying any outstanding income tax. You may wish to consult with Canada Revenue Agency   for more information.

You may be required to file a final tax return for each year or part of the year that the estate is under administration. You may wish to seek professional tax advice for the preparation and filing of the estate's income tax. There may also be other tax returns that need to be filed (e.g., with the U.S. Internal Revenue Service, if the deceased owned a house in Florida, etc.).

Distributing the Assets to the Heirs/Beneficiaries

After the deceased's debts and taxes have been paid, as well as the expenses for the administration of the estate, you should determine which of the estate assets will be given to the beneficiaries or heirs of the estate. If there is a will, you should determine if it lists specific assets for specific beneficiaries (e.g., my granddaughter gets my wedding ring) and distribute the estate according to the will. After the estate has been distributed to specific beneficiaries, anything else forms part of the "residue" of the estate. The will usually states who is to receive the "residue" (e.g., "everything else to my wife").

If there is no will, refer to section 48 of the Indian Act to determine who the heirs are and how the estate should be distributed. After the heirs are determined, it may be helpful to have them get together and write out an "heirs' agreement" to decide among themselves as to how the assets should be divided. If the heirs enter into an heirs' agreement, it is your responsibility as the administrator to ensure that the assets are distributed as stated in the heirs' agreement. After you have finished distributing the estate, you should close the estate bank account.

Requesting a Transfer of Reserve Land

If the person(s) to whom the land is being transferred is a member of the same band as the deceased, the administrator or executor is responsible for contacting the Regional Office of AANDC and in certain circumstances, the band office, to be informed of document requirements. For any request for a transfer of reserve land in accordance with the will or the Indian Act a Transfer of Land form must be completed by the administrator or executor. There also may be a need for a survey if the property is to be divided.

Accounting to Heirs/beneficiaries

After the final distribution, the administrator or executor will need to prepare and submit a full accounting of the estate administration to the heirs or beneficiaries and to the AANDC regional office when requested. You should include a list of all of the estate assets and their value at the date of death, and provide details on how the estate assets were used to pay debts and distributed. A copy of all estate administration documents should be kept for at least seven years.

General Information

Department of Aboriginal Affairs and Northern Development Canada
Headquarters Main Contact information:
Phone: 1-800-567-9604
TTY: 1-866-553-0554
www.aandc-aadnc.gc.ca

Click on the link for Regional Offices for further contact information.

Click on the link for Benefits and Rights then Estates for more information on the Estates Program. Estates publications are available for free on the website and from various offices of Aboriginal Affairs and Northern Development Canada. The following is a list of our publications:

Click on the link for Benefits and Rights, Indian Status for information on Indian Registration.

Department of Justice
For links to the Indian Act R.S.C., 1985, c.1-5 and the Indian Estates Regulations C.R.C., c.954

For many services available to Canadians:

Service Canada

Canada Revenue Agency

Fisheries and Oceans Canada

Human Resources and Skills Development (Canada)

For information about the Old Age Security program, Canada Pension Plan and Registered Disability Savings Plan.

Indian Act R.S.C., 1985, C.I-5

I-5
An Act respecting Indians
SHORT TITLE
Short title
1. This Act may be cited as the Indian Act.
R.S.,C.I-6,S.1.

Descent of Property

Powers of Minister with respect to property of deceased Indians 42. (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.

Regulations
(2) The Governor in Council may make regulations providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

Application of regulations
(3) Regulations made under subsection (2) may be made applicable to estates of Indians who died before, on or after September 4, 1951.

R.S., c. I-6, s. 42.

Particular powers
43. Without restricting the generality of section 42, the Minister may

  1. appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;
  2. authorize executors to carry out the terms of the wills of deceased Indians;
  3. authorize administrators to administer the property of Indians who die intestate;
  4. carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and
  5. make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

R.S., c. I-6, s. 43.

Courts may exercise jurisdiction with consent of Minister
44. (1) The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.

Minister may refer a matter to the court
(2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration of a deceased shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to that court any question arising out of any will or the administration of any estate.

Orders relating to lands
(3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.

R.S., c. I-6, s. 44.

Wills

Indians may make wills
45. (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.

Form of will
(2) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.

Probate
(3) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.

R.S., c. I-6, s. 45.

Minister may declare will void
46. (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that

  1. the will was executed under duress or undue influence;
  2. the testator at the time of execution of the will lacked testamentary capacity;
  3. the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;
  4. the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;
  5. the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or
  6. the terms of the will are against the public interest.

Where will declared void
(2) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.

R.S., c. I-6, s. 46. 269

Appeals

Appeal to Federal Court
47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal.

R.S., c. I-6, s. 47; R.S., c. 10(2nd Supp.), ss. 64, 65.

Distribution of Property on Intestacy

Surviving spouse's share
48. (1) Where the net value of the estate of an intestate does not, in the opinion of the Minister, exceed seventy-five thousand dollars or such other amount as may be fixed by order of the Governor in Council, the estate shall go to the survivor.

Idem
(2) Where the net value of the estate of an intestate, in the opinion of the Minister, exceeds seventy-five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, seventy-five thousand dollars, or such other amount as may be fixed by order of the Governor in Council, shall go to the survivor, and

  1. if the intestate left no issue, the remainder shall go to the survivor,
  2. if the intestate left one child, one-half of the remainder shall go to the survivor, and
  3. if the intestate left more than one child, one-third of the remainder shall go to the survivor, and where a child has died leaving issue and that issue is alive at the date of the intestate's death, the survivor shall take the same share of the estate as if the child had been living at that date.

Where children not provided for
(3) Notwithstanding subsections (1) and (2),

  1. where in any particular case the Minister is satisfied that any children of the deceased will not be adequately provided for, he may direct that all or any part of the estate that would otherwise go to the survivor shall go to the children; and
  2. the Minister may direct that the survivor shall have the right to occupy any lands in a reserve that were occupied by the deceased at the time of death.

Distribution to issue
(4) Where an intestate dies leaving issue, his estate shall be distributed, subject to the rights of the survivor, if any, per stirpes among such issue.

Distribution to parents
(5) Where an intestate dies leaving no survivor or issue, the estate shall go to the parents of the deceased in equal shares if both are living, but if either of them is dead the estate shall go to the surviving parent.

Distribution to brothers, sisters and their issue
(6) Where an intestate dies leaving no survivor or issue or father or mother, his estate shall be distributed among his brothers and sisters in equal shares, and where any brother or sister is dead the children of the deceased brother or sister shall take the share their parent would have taken if living, but where the only persons entitled are children of deceased brothers and sisters, they shall take per capita.

Next-of-kin
(7) Where an intestate dies leaving no survivor, issue, father, mother, brother or sister, and no children of any deceased brother or sister, his estate shall go to his next-of-kin.

Distribution among next-of-kin
(8) Where an estate goes to the next-of-kin, it shall be distributed equally among the next-of-kin of equal degree of consanguinity to the intestate and those who legally represent them, but in no case shall representation be admitted after brothers' and sisters' children, and any interest in land in a reserve shall vest in Her Majesty for the benefit of the band if the nearest of kin of the intestate is more remote than a brother or sister.

Degrees of kindred
(9) For the purposes of this section, degrees of kindred shall be computed by counting upward from the intestate to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.

Descendants and relatives born after intestate's death
(10) Descendants and relatives of an intestate begotten before his death but born thereafter shall inherit as if they had been born in the lifetime of the intestate and had survived him.

Estate not disposed of by will
(11) All such estate as is not disposed of by will shall be distributed as if the testator had died intestate and had left no other estate.

No community of property
(12) There is no community of real or personal property situated in a reserve. (13) and (14) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

Equal application to men and women
(15) This section applies in respect of an intestate woman as it applies in respect of an intestate man. (16) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]

R.S., 1985, c. I-5, s. 48; R.S., 1985, c. 32 (1st Supp.), s. 9, c. 48 (4th Supp.), s. 2; 2000, c. 12, ss. 149, 151.

Devisee's entitlement
49. A person who claims to be entitled to possession or occupation of lands in a reserve by devise or descent shall be deemed not to be in lawful possession or occupation of those lands until the possession is approved by the Minister.

R.S., c. I-6, s. 49.

Non-resident of reserve
50. (1) A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve.

Sale by superintendent
(2) Where a right to possession or occupation of land in a reserve passes by devise or descent to a person who is not entitled to reside on a reserve, that right shall be offered for sale by the superintendent to the highest bidder among persons who are entitled to reside on the reserve and the proceeds of the sale shall be paid to the devisee or descendant, as the case may be.

Unsold lands revert to band
(3) Where no tender is received within six months or such further period as the Minister may direct after the date when the right to possession or occupation of land is offered for sale under subsection (2), the right shall revert to the band free from any claim on the part of the devisee or descendant, subject to the payment, at the discretion of the Minister, to the devisee or descendant, from the funds of the band, of such compensation for permanent improvements as the Minister may determine.

Approval required
(4) The purchaser of a right to possession or occupation of land under subsection (2) shall be deemed not to be in lawful possession or occupation of the land until the possession is approved by the Minister.

R.S., c. I-6, s. 50.

Regulations
50.1 The Governor in Council may make regulations respecting circumstances where more than one person qualifies as a survivor of an intestate under section 48. 2000, c. 12, s. 150.

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