If you work, have children or property make a will

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PRO BONO

Dear Tuma:

Last month my cousin died and left a will naming me as the executor. I do not have a clue as to what to do. I paid all the funeral expenses, but does Indian Affairs pay that? How can I be reimbursed for all the money I spent? Now his family tells me that what is in the will is not what he wanted and that they know what should go to whom. What should I do?

Under Pressure

Dear Under:

My condolences on the loss of your cousin and your cousin did the right thing by having a will done and this will make your job easier. First, he named you as the executor. This means that you are the person in charge of his estate. This means collecting all monies owed to the estate, paying all of the bills (out of the estate, not out of your pocket) and distributing whatever is left to the heirs.

Handling the estate of an Indian is a bit different than handling the estate of a non-status. What is important to note is whether the person was living on reserve or off reserve. If your cousin was living on reserve, then you should contact Indian Affairs to see about being appointed executor and obtain the rest of the forms required. If your cousin lived off reserve and held property off reserve, you should contact a wills and estate lawyer to begin probating the estate.

First, get yourself appointed executor by Indian Affairs. Then arrange to collect all monies due to the estate and pay all bills outstanding. You may need to do a final income tax return. Do not forget to check into pensions, life insurance policies, the Canada Pension Plan, bank accounts and take an inventory of your cousin's property (land, house, furniture, anything of value). Now, collect all the bills, such as credit cards, car payments, bank loans, etc and use the money collected to pay off all of the debts. Do not forget to pay off the funeral home and other funeral expenses.

Whatever is left can then be distributed according to his wishes in the will. This is what your cousin wanted and make sure that his final wishes are carried out. If his family is not satisfied with the will, they can go see another lawyer and challenge the will in court. Make sure that none of the assets are lost or diminished while you are doing this. An example of this is paying the insurance bill on the car while you are arranging for it to be transfer or sold under the will.

As executor, you are not expected to pay for anything out of your own pocket, but that all expenses will come out of the estate. You may be reimbursed for your expense, but keep receipts and records of what you spent on the estate. You can submit a fee for acting as the executor (a reasonable amount). Furthermore, if the estate is large or complicated, you can hire a lawyer to help you.

Finally, I wish to say to everyone, get a will done and update it every five years or whenever your financial situation changes. Folks think that they have very little that it is not worthwhile to do a will, but if you have children, work, have a Certificate of Possession, contribute to a pension plan, bought life insurance, became married, single, divorced, common law, have a house or for any other reason, you need a will.

Dear Readers:

Please join me in extending congratulations to Cheryl Knockwood of Indian Island First Nation, N.B. and Kenny Loon, Mistissini Cree Nation, Que. Both have just graduated from the Masters in Indigenous Peoples Law & Policy Program at the University of Arizona, the same program that I graduated from. Congratulations and I just may ask them to submit a guest column. Keluk Tela'te'ka'oq Nitapk

This Column is not intended to provide legal advice but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in Law at the University of British Columbia and questions can be sent to him via email at: puoin@telus.net