Most of what people know about wills and estates comes from how it works off reserve: a provincial court, probate, an executor, a lawyer. On reserve, almost none of that is the system you are in.
A different system entirely
Where a person was registered under the Indian Act — or could have been — and usually lived on a reserve, their estate is administered by Indigenous Services Canada under sections 42 to 50 of the Act. Not provincial probate. Not a provincial court.
ISC describes estate administration as a private family matter and expects families to run it themselves. What the department does is specific:
- appoints the executor or administrator
- approves the will, which is what makes it take effect
- transfers reserve land from the estate to the heirs
- determines the heirs where there is no will
- steps in as administrator only if nobody is willing or able
The part that surprises families
A house on reserve does not pass like a house anywhere else. The Indian Act is direct about it:
A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve.
In plain terms: you can only leave the land you hold on reserve to someone who is a member of your First Nation. If you leave it to a child who is not a member, they do not get the house. The interest is offered for sale to the highest bidder among people who are entitled to live on the reserve, and your child receives the money it sold for.
Nobody is being singled out when this happens. It is the Act working as written, and it catches families who did everything they thought was right — including families who paid a lawyer for a will that says something the Act will not let it do.
A will made under provincial rules is written for a provincial system. On reserve, the will has to satisfy the Indian Act and be approved by the Minister before it takes effect, and it cannot leave reserve land to someone with no right to live there.
This is not a reason to avoid a lawyer. It is a reason to say, at the start, that the estate includes reserve land and falls under the Indian Act — and to ask whether they have done one before. A lawyer who has not will usually say so.
Without a will, the Act decides
Fewer than 9% of First Nations people living on reserve have a will when they die. It is the ordinary case, not the careless one.
Where there is no will, ISC determines the heirs under the Indian Act. The family does not choose, the deceased's wishes carry no weight on their own, and the same restriction on land still applies. Everything that would have been a decision becomes a default.
What to do, in order
- Establish where they usually lived. On reserve puts the estate with ISC; off reserve puts it in the provincial system. Everything else follows from this.
- Find out whether there is a will, and whether ISC approved it. An unapproved will has not taken effect.
- Gather the papers. Status card, SIN, the will, bank statements, and any land or housing papers from the reserve — a Certificate of Possession most of all.
- Contact ISC estate services to have an executor or administrator appointed. A band office has usually done this before and can point you at the right person.
- Ask about the household's benefits separately. CPP survivor benefits, the Allowance, and child benefits shift when someone dies, and most are backdated to the date of death — so the timing of that call is not what decides the amount.
Last updated August 2026