In Indigenous communities, it is beneficial to have a will to manage your property after you pass away and to simplify matters for your family members. For Indigenous people who live in an Indigenous community, the rules that apply are those from the Indian Act. For those who do not, their wills and estates are outlined by the Civil Code of Québec.
Benefits Of Having A Will
First and foremost, having a will is not mandatory. However, there are consequences if you pass away without one. If you are an Indigenous person living in an Indigenous community when you pass away and do not have a will, your property will be distributed to your relatives based on the Indian Act without respect to your personal wishes. The Indigenous Services Canada (ISC) will also name a person, the executor, to settle your estates and distribute your property accordingly.
Your will should mention the following:
(1) the heirs who inherit your property;
(2) how you wish to distribute your property;
(3) a list of all of your assets;
(4) the location of your property, especially the exact designation of land;
(5) if you have children, a guardian for your children if they are under the age of 18;
(6) an executor to settle your affairs and notify your heirs;
(7) any funeral wishes you may have.
Who Will Inherit The Succession Following The Indian Act?
The person who would get the property depends on the value of the estate, whether that is a common-law partner or a spouse. The estate would include: cash, investments, land, debts, etc. If the estate is worth $75,000 or less, everything would go to your common-law partner or spouse. If the estate is worth more than $75,000, your partner is entitled to $75,000 and a or a of the exceeding portions depending on how many children there are. The children of the deceased would receive the remaining value of the estate distributed equally among them. In addition, the spouse or common-law partner of the deceased has special rights to the family residence and certain land in the community.
An important consideration when preparing your will is to communicate with a legal professional and mention that you are a member of a First Nations community to ensure that the appropriate rules are applied and that your will is valid.
