wills and estates overview

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WILLS AND ESTATES

UNDER THE INDIAN ACT:AN OVERVIEW

GENERAL BAND MEETING

MARCH 24TH, 2011


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INAC ROLE

INAC acts for Minister of Indian Affairs pursuant to the Indian Act :

1. Approving wills and confirming the appointment ofExecutors

2. Settling the estates of people who have died when nobody inthe family is able to do so

3. Managing the finances of people who are unable to do sobecause of mental incapacity

4. Handling money for minors


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YOUR ROLE

Planning for your own passing as well as planning for the

possibility of you being incapacitated are two of the mostimportant things you need to do in life.

You need to make sure that your wishes are expressed properly

in the event you cannot speak for yourself.

You need to ensure that your estate is handled as quickly and ascheaply as is reasonably possible.


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WHERE THE INDIAN ACTAPPLIES

For Indian Actrules to apply you must be:

1. Status

2. On reserve

a. This includes people living on reserve but away for aperiod of time to god to school or for seasonalemployment.

b. This also includes people whos home is on reserve buthave to leave to go into a care facility off-reserve

c. This does NOTinclude status First Nations people wholive off reserve or non-status residents of a reserve.


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YOUR ESTATE

Your estate consists of what you own minus what you owe.

Assets:

Land

Vehicles

InvestmentsBank accounts

Liabilities:

Loans

Credit Cards

Lease payments


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IF YOU DIE WITHOUT A WILL

If you dont make your own Will, Sections 48 and 50 of the Indian

Act are effectively going to be your government imposed Will.

This makes assumptions about who should be provided for andmay not (probably will not) reflect your actual wishes.

It also creates an administrative headache for your loved onesand the people that you leave behind.

For example, you dont indicate who is in charge, what you want

done with your possessions and the final distribution of yourestate.


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IF A FAMILY MEMBER DIES WITH A WILL


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NON-BAND MEMBER BENEFICIARIES

If you are a band member and:

you have no will

you have no children

and your closest next of kin are nieces and nephews

Then any reserve land you have must be transferred to the

band.

If your beneficiary or next of kin is not a band member, will or nowill, your share of the land in question has to be soldand the

Superintendent of Indian affairs gives them the sale proceeds andnot the land itself.


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WHERE A WILL HELPSHaving a will allows you to:

Give a gift to a friend or more distant blood relative

Leave something to a step child or a child you haveraised but not legally adopted

Give more to a more needy family member

Choose who looks after your estate

Name a guardian for any children not yet adults

Avoid some of the Indian Act Provisions that mightapply to your land.


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DOCUMENTS YOU WILL NEED

1. Full names and band membership information for all thepeople named in your will

2. Parcel abstract report for any reserve land interests youhave

3. List/description of all:

a. Vehicles/Boats/ATVs recreational vehicles etc.

b. Business or work equipment and machinery

c. Insurance policies and pension funds

d. Bank accounts (including account numbers.

e. Debts/CreditCards/car loans including whether or not anyof them are life insured.


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MAKING THE WILL LEGAL

1. To make a will you must be:

1. Age 19 or older

2. Have mental capacity to make a will

3. Free from duress or undue influence

The will must be:

1. In writing

2. Signed by the will maker

3. Give clear instructions as toa. Who is in charge (Executor)

b. Who gets what property after your death


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EXECUTOR

1. Your executor should be:

1. Trustworthy

2. Able to work on his/her own

3. In good health

4. Able to manage the paperwork involved

5. Able to communicate with and be respectful to all yourbeneficiaries

You may want to name an alternate executorin case yourfirst choice is unable or unwilling to act on your behalf.


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EXECUTOR DUTIES Generally speaking your executor:

1. Makes funeral arrangements with your family

2. Gets your will approved by INAC

3. Contacts everyone named in the will

4. Claims death benefits available

5. Looks after your property until it is transferred

6. Sees that your debts are paid7. Distributes property in your estate in accordance with

your will

8. Provides an accounting of funds to beneficiaries

9. Notifies everyone who needs to know about your death

a. Employer

b. Hydro/phone/cable

c. Government agencies


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OTHER DOCUMENTS YOU NEED

1. Power of Attorney

1. This is a written, signed document in which you:1. appoint another person to make financial and legal

decisions for you.

2. The powers you give can be limited to a few specificpowers for a short time

3. or you can give a general Power of Attorney for allfinancial and legal purposes.

This deals with the financial side of your affairs and would

allow your attorney to cash cheques, make deposits, pay billsand otherwise take care of your business affairs.


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REPRESENTATION AGREEMENTS

A Representation Agreement is a written, signed document in

which you: appoint someone to speak and act for you with you cant

speak and act for yourself because of illness, accident ordisability.

It is broader than a Power of Attorney and can coverhealth care decisions as well as financial and legaldecisions.

You can limit a Representation Agreement to your care and

medical matters (not financial and legal matters), but youcannotexpand a power of attorney to include medical and

personal care decisions.


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SUMMARY

1. Every band member of adult age should have a will

2. Every band member should have a document thataddresses what would happen if they were incapacitated

1. Stroke

2. Car Accident

3. Mental Disability (Alzheimers.for example)

Sample documents can be obtained from the band office oronline at:

www.afoabc.org(look under What We Do then underResources or Publications)
http://www.afoabc.org/http://www.afoabc.org/


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SAMPLE WILL (TO SPOUSE)


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OTHER RESOURCESEstate Administration on Reserve: A Guide for Executors and

Administrators in BC Available from the Estates Unit at INAC-BC

Region

INAC Estates Unit

Toll Free: 1-888-917-9977

Email: [email protected]

Individual Land Holdings:

Toll Free: 1-888-917-9977

Electronic Versions of Brochures are also available through theband office
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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THANK YOU

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