There are special rules when someone inherits land or a house in an Indigenous community (“reserve”), whether or not the person who died had a will.
The rules explained in this article apply to wills and estates of Indigenous people who
Indigenous people who don’t live in an Indigenous community should refer to the Civil Code of Québec instead of the Indian Act. You can read our articles in our Wills and Estates section to learn more.
If you are an administrator and there is no will, it’s a good idea to see a lawyer or notary.
Right to Use and Occupy Land
To understand the rules about inheriting land in a community, keep these points in mind:
- Only members of First Nations can use and occupy land in an Indigenous community. But they don’t own the land. Their right to use and occupy the land is called lawful possession.
- Members can get the right to use and occupy land under a traditional system in their community. Or they might have a document called a Certificate of Possession that proves their right.
- The right to use and occupy land lets a band member build a house on the land or live in an existing house.
Right to Inherit
Only band members can directly inherit land in a community. Even if the person who died had a will and left you land rights, you can only inherit the rights if you’re a band member.
If the person who died had a Certificate of Possession, the person’s land rights can be sold. The money from the sale can then be given to an heir who is not a band member.
If the person who died occupied the land under the community’s traditional system, ask the Band Council what happens if an heir is not a band member.
Land Transfer to Heirs Who Are Band Members
If the person who died had a Certificate of Possession for the land, the person taking care of the estate must ask Indigenous Services Canada to transfer the land rights to the heir. The community’s Land Agent or Indian Registration Administrator can help.
If the person who died occupied land under the community’s traditional system, ask the Band Council who gets the rights to the land or house.
Spouse’s and Common-Law Partner’s Rights
A spouse who isn’t a band member can live in the house for six months after the person’s death. Common-law partners also have this right if they had been living with the person who died for at least one year. Common-law means making a life together without being married.
In some cases, the spouse or partner can also inherit the home or half of its value. To learn more, read our article on spouses’ rights.