Difference between revisions of "Death and Taxes (Legal Information for Indigenous People)"
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===Representation Agreements=== | ===Representation Agreements=== | ||
A Representation Agreement is a legal planning document under the BC Representation Agreement Act. A Representation Agreement is a way you, as an adult, can name people to help you make decisions or make decisions on your behalf if your mental capacity comes into question. Spouses or parents of adult children do not have automatic legal authority to speak for you or “act on your behalf. | |||
===Taxation=== | ===Taxation=== |
Revision as of 21:37, 8 February 2023
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EDITS IN PROGRESS This wikibook, Legal Information for Indigenous People, is still under development. The content on this page may be incomplete. For the complete version, download the PDF version via Clicklaw. |
Wills[edit]
On Reserve: to be valid, a will under the Indian Act must:
- Be in writing (*audio/video wills/oral instructions are not accepted)
- Be signed by the will-maker
- Give away something the will-maker owns
- Be intended to take effect upon death
- Have 2 adult witnesses (not beneficiaries or their spouses)
- Be dated
The person writing the will must be[edit]
- A “Status Indian” under the Indian Act
- considered “ordinarily resident on-reserve”
- 16 and older
- Free from pressure or influence
In addition to these requirements, it is important to include the following in your will:
- Name executor and alternate to manage your estate
- Who you want to care for your children
- Funeral directions
- Make gifts of specific assets (e.g., your house, boat, car, jewelry, art, television etc.)
- The residue/remainder (what is left over after payments of debts and gifts of your estate)
For step by step directions use the template in “Writing Your Own Will - A Guide for First Nations People Living on Reserve (Revised 2019).”
https://afoabc.org/wp-content/uploads/2021/03/AFOA-BC-Wills- and-Estates-Booklet-2019.pdf. For questions contact Indigenous Services Canada, Estates Unit, 1.888.917.9977 or BCEstates@sac-isc.gc.ca
Indigenous people on reserve can leave their home to people who are members of their band or entitled to be, as long as the house is located on a Certificate of Possession lot (“CP”). A CMHC house cannot be given away in a will. Check with your Band’s housing department to find out what happens to a CMHC house or Custom allotment in the event you pass away.
Off reserve the law for writing wills is the Provincial legislation Wills and Estates Succession Act (WESA). There is an online template at MyLawBC that can help you make a simple will that says what you want to happen after you die: https://mylawbc.com/pathways/make-a-will.
For Legal Advice about Wills, call Access Pro Bono Justice to schedule a free 1/2 hour phone appointment with a lawyer 1-877-762-6664.
Estates[edit]
An Estate is all of the money and property (and debts) left after someone dies. Estates fall under federal jurisdiction with Indigenous Services Canada (ISC) when someone passes away who is “ordinarily resident” on reserve (meaning if they were living away from the reserve, it was only for school, medical etc.).
The person named in the Will as the Executor has the job of settling the affairs of the deceased: paying the bills, filing taxes, closing accounts, and generally following the wishes of the deceased in their will. If there is no will, then the family (and ISC) will appoint an Administrator. ISC will send the Administrator a certificate showing their appointment.
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Executors and family members are Not liable for the debts of the deceased. The Executor’s role will be to pay bills from money in the Estate before any beneficiaries are paid. If no money, then no bills get paid.
If your common law partner or spouse has passed and you are wondering how your home on reserve is effected, the Family Homes on Reserve and Matrimonial Interests or Rights Act will likely apply. If so, you:
- are entitled to remain in the home for 180 days, even if renting and even if not a Band member
- can apply under the Act for exclusive occupation of the home beyond the 180 days (depends on situation)
- may apply within 10 months of the death for a court order to determine entitlement
If you are entitled to this right or interest, note that you will not also be able to receive an amount under the will for the same property.
For information about estates Off Reserve see People’s Law School publications online at https://peopleslawschool.ca/publications/wills-and-estates-collection
Representation Agreements[edit]
A Representation Agreement is a legal planning document under the BC Representation Agreement Act. A Representation Agreement is a way you, as an adult, can name people to help you make decisions or make decisions on your behalf if your mental capacity comes into question. Spouses or parents of adult children do not have automatic legal authority to speak for you or “act on your behalf.