The applicability of Ontario law to indigenous persons is a complicated one, and the paramount law is the federal Indian Act. The Ontario Estates Act and Estates Administration Tax Act indicate that for a deceased indigenous person ordinarily living off the reserve, Ontario law applies. This is important as to whether or not the province’s probate tax of 1.5% would apply. This needs careful consideration. A few scenarios arise. If the deceased was a status Indian person, who resided off the reserve and had property off the reserve, the estate administration tax also known as probate tax is payable on the value of that property.
Alternatively, if the deceased was a status Indian person who resided off reserve, had property on a reserve, but that reserve property is being transferred to another status Indian the estate administration tax aka probate tax is not payable on the value of that property. Wills and Probate Lawyers come across this situation regularly.
None of this is simple. When we deal with indigenous client’s their reserve or Tribe often has a legal team that can offer assistance.
