When an Indigenous person dies while living in a community (“reserve”), Indigenous Services Canada (ISC) names someone to settle the person’s affairs and manage the estate. That person plays an important role and has specific duties.
The person who manages the estate is usually:
- an administrator who is recommended to the ISC by the family or heirs of the person who died, or
- an executor who is chosen and named in a will by the person who died.
If the person named as administrator or executor doesn’t want the responsibility, the ISC will appoint a replacement
1. Notify Services and Organizations
The administrator or executor must notify all services and organizations the person dealt with and close the accounts. Here are examples:
- Retraite Québec (Quebec pension plan)
- social assistance
- telephone and electricity services
- Canada Post
- insurance companies
- banks and credit card companies
2. Open an Estate Bank Account
The estate bank account is used for these things:
- deposit money belonging to the person who died (for example, money from the person’s personal bank account and life insurance benefits)
- make payments (for example, paying the bills and debts of the person who died)
It’s important to keep a record of all deposits and withdrawals in this account in case the heirs or the ISC ask questions.
3. Identify and Notify the Heirs
If the person who died had a will, the heirs are named in the will.
If the person who died didn’t have a will, the Indian Act decides who the heirs are.
4. Make an Inventory of Property and Debts
The administrator or executor must make a list (called an inventory) of these things:
- property of the person who died and its value (house, car, appliances, bank accounts, etc.)
- debts of the person who died
To find out who the person who died owed money to, the administer or executor must post a notice in these places:
- Band Council office
- post office
- other public places where notices are usually posted (for example, community centres and grocery stores)
ISC has a form the administrator or executor can use to prepare the notice. Anyone who wants to claim money from the estate has eight weeks from the time the notice is posted to make the claim.
5. Pay Taxes and Debts
Before distributing the property to the heirs, the administrator or executor must pay all debts and taxes owed by the person who died.
The administrator or executor must do these things:
- file the tax returns of the person who died with Revenu Québec and the Canada Revenue Agency
- pay taxes using the money in the estate
- ask for certificates confirming that all taxes have been paid, that is, a “Clearance Certificate” from the Canada Revenue Agency and a “Certificate Authorizing the Distribution of Property” from Revenu Québec
An accountant can help.
The administrator or executor must
- pay all debts using the money of the estate and
- keep all bills and receipts proving the debts have been paid.
If there isn’t enough money to pay all the debts Some of the property might have to be sold. It’s a good idea for the administrator or executor to see a lawyer or notary in this situation.
6. Respect the Rights of the Spouse or Common-Law Partner
Lands and Homes on a Reserve: Rights of the Spouse or Common-Law Partner
The spouse of the person who died has specific rights to the home and land in a community (“reserve”) even if the will doesn’t leave anything to the spouse. A common-law partner who has been living with the person who died for at least a year has the same rights as a married spouse to land or home in a community (“reserve”).
The spouse or partner has 10 months to file a claim in court. Administrators or executors must not distribute the property before the end of the 10 months unless they have written permission from the spouse or partner.
Other Property: Extra Rights for Married Spouses
Under Quebec law, the spouse of the person who died also has rights to the other family property, which includes the car and furniture. But common-law partners only have rights to the home and land but not to the other family property, such as the cars and furniture.
Talk to a lawyer or notary to learn more about how family property is divided.