Regulations Respecting Indian Estates
2 In these Regulations,
Act means the Indian Act; (Loi)
administrator means a person appointed by the Minister to administer the property of deceased Indians and includes a person who, by reason of his office, is instructed to initiate or conclude the administration of an estate; (administrateur)
Minister means the Minister of Indian Affairs and Northern Development; (ministre)
prescribed means prescribed by the Minister. (prescrit)
Notice of Death
(2) Except when otherwise ordered by the Minister for the purposes of these Regulations, the presumption of death shall arise and be determined in the manner it arises and is determined where persons other than Indians are concerned.
4 (1) When he receives notice of the death of an Indian, or as soon thereafter as possible, the superintendent shall forward an itemized statement of inventory in the form prescribed, to the Minister, showing all the real and personal property of the deceased, the value of each item estimated as closely as possible, as well as all debts of or claims against the estate known at such time, and he shall also state therein whether the deceased left a will and give the names of all persons entitled to share in the estate and all such other information as may be required by the Minister.
(2) For the purposes of this section, the superintendent shall act in the capacity of an administrator and shall take all necessary steps for the proper safekeeping or safeguarding of the assets of the deceased and for the collection of moneys due or owing to the deceased and shall dispose of the moneys so collected or held as the Minister may direct.
(3) Where the deceased had been in receipt of any pension, gratuity or allowance, any cheque or money order received by or on behalf of the deceased that had not been cashed shall be returned by the superintendent to the sender for re-issue to the order of the Receiver General for credit to the estate concerned.
Probate of Will
5 (1) Where the deceased leaves a will, the superintendent shall cause application for probate in the form prescribed to be completed and signed by the executor, if any is named in the will, unless the superintendent considers him to be incapable by reason of age or other cause to perform the duties of an executor.
(2) Where the executor named in the will refuses to act, the superintendent shall have him record his refusal in writing on the application.
(3) Where the person named in a will is unwilling to act or is considered by the superintendent to be incapable of acting, the superintendent shall complete the application.
Application for Administration
6 The superintendent shall, together with the application under section 5, or with the statement of inventory if there is no will, forward to the Minister an application for administration in the form prescribed.
7 All applications required under these Regulations shall be made under oath except where, by reason of remoteness or otherwise, the Minister provides that the certificate of the applicant in the form prescribed may be accepted in lieu thereof.
Advertising for Creditors, Heirs and other Claimants
8 (1) When the application for administration has been forwarded to the Minister, the superintendent shall give notice to creditors, heirs and other claimants in the form prescribed that all claims against the deceased or the estate or to any interest therein are required to be filed with him in person or by mail within eight weeks from the date the notice is first posted or given.
(2) The notice referred to in subsection (1) shall be posted in the post office, in the agency office and in all such other meeting places or public places where notices are usually posted or given to the band to which the deceased belonged, and when so ordered by the Minister, may be published in such other manner or place as is deemed expedient.
(3) Any claim that has not been filed within the period prescribed in subsection (1) shall not be received unless the Minister so orders.
(4) Every claim by a creditor shall be accompanied by evidence of the debt in a form satisfactory to the Minister and, unless such evidence accompanies the notice of claim, it may be filed within 15 days of the filing of the notice.
9 Where an executor or executors have been named in a will and the will has been approved in whole by the Minister, or where an executor has been appointed by the Minister, the executor shall thereupon be considered the personal representative of the deceased and, where so ordered by the Minister, he shall act under the instructions of the administrator.
10 The Minister may, in his discretion, order that an executor or an administrator give sureties as he deems necessary to ensure that the executor or the administrator will carry out his duties in accordance with these Regulations and his instructions.
Powers and Duties of Administrators
11 (1) The Minister may appoint an officer of the Indian and Eskimo Affairs Branch to be the administrator of estates and to supervise the administration of estates and of all the assets of deceased Indians, and may provide that for the purposes of closing an estate the administration thereof be transferred to the superintendent of the reserve to which the deceased belonged.
(2) The administrator appointed pursuant to this section or the person acting as administrator in accordance with section 4 shall be responsible to the Minister for the proper preparation of the inventory, the giving of all notices and the carrying out of all inquiries and duties that may be necessary or be ordered with respect to any matter referred to in these Regulations.
(3) Where a claim is made against an estate, the administrator may provide for payment thereof out of the assets of the estate when it appears that it is well founded; where in the opinion of the administrator the claim is doubtful or is not of the nature of a cause or matter testamentary, he shall refer it to the Minister for decision.
(4) An administrator may pay all debts owing by the estate and shall obtain receipts therefor or releases, as the case may be, and where the debt is in the nature of a loan, he may pay the balance owing or, with the consent of the heirs, transfer ownership of the security given for the loan or, with the consent of the band or of the Minister, as the case may be, sell the property upon which a lien exists to guarantee payment of the loan; he may also sell any asset real or personal for the purpose of paying debts owing by the estate, under such conditions as may be prescribed.
(5) No proceedings to establish or enforce a claim against an estate shall be valid unless the administrator is made a party thereto.
(6) The administrator may cause partial distribution to be made from the net assets of the estate to ensure the expedient administration thereof.
(7) Where a partial distribution cannot be made, or where the heirs cannot agree as to distribution, the administrator may, with the approval of the Minister, convert the net assets into cash and pay those assets to the Receiver General to be credited to the estate pending final distribution to the persons entitled thereto.
(8) Where the deceased had a deposit with a bank or other financial institution, or where such institution holds bonds or certificates on behalf of the deceased, the administrator may require the financial institution to transfer the moneys to the Receiver General for credit to the estate and to turn over to him the bonds or certificates so that he may sell them and deposit the proceeds to the credit of the estate or dispose of them in such other manner as may be prescribed.
(9) When moneys are payable to the estate of an Indian under a life insurance policy, the administrator may direct that the amount payable under the policy be paid to the Receiver General for credit to the estate.
(10) The administrator shall obtain or cause to be obtained all certificates or releases that may be required under federal or provincial statutes with respect to an estate or a succession.
(11) An administrator is empowered to do all that an executor is empowered to do where the executor refuses to act or is incapable of acting by reason of absence or sickness or for any other reason.
(12) Any bank or other financial institution or any person who makes a payment or delivers a bond or certificate under these Regulations is indemnified against any liability that may arise by reason thereof.
(13) An administrator may, if he thinks fit, and shall, if required by the Minister, lease or renew any lease of land held by the deceased and may cause to be fulfilled any contract entered into by the deceased.
(14) An administrator shall have all such powers as are required for the carrying out of the duties herein specified, and shall carry out any order or direction and abide by any finding made or given by the Minister with respect to any matter and cause testamentary.
(15) An administrator shall be accountable to the Minister for his administration.
(16) Compliance with these Regulations with respect to administration of estates shall discharge the administrator or other person complying therewith from all liability by reason of any of the assets in his hands having been paid, transmitted, remitted or otherwise dealt with in accordance therewith.
Transfer of Possession
12 (1) Where the deceased Indian had been in peaceable, public and useful possession of land on a reserve for a continuous and uninterrupted period of 30 years, transfer of possession may, at the discretion of the Minister, be presumed to have taken place and in such event the onus of proving that prescription did not run or of disproving the transfer shall be upon any person claiming adverse possession.
(2) For the purposes of this section, in calculating the 30-year period, the period of possession of the deceased, his predecessors in title and that of his heirs, may be cumulated.
Absent or Missing Heirs
13 Where heirs are found upon due inquiry to be absent or missing and notices or advertisements have been given or published in accordance with these Regulations, the moneys or assets in an estate to which they might be entitled shall be held in a special account, without interest, and unless evidence of death satisfactory to the Minister is filed or obtained, shall be held for a period of seven years after which the absent or missing heirs who have not reported by such time shall be presumed to be dead and the moneys or assets distributed accordingly to the remaining heirs or persons entitled thereto.
14 [Repealed, SOR/2003-85, s. 1]
15 Any written instrument signed by an Indian may be accepted as a will by the Minister whether or not it conforms with the requirements of the laws of general application in force in any province at the time of the death of the Indian.
16 The Minister may prescribe further and other notices and forms as he deems necessary for the purposes of section 42 of the Act and these Regulations.
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