Frequently asked questions
Questions
Tax laws make it incumbent upon the seller to inform the authorities of the disposal of a property using prescribed forms. These forms may be sent before or after the deed of sale is signed at the notary’s office. In either case, a certificate of compliance will be issued if the applicable duties have been paid. If this is not done, the buyer becomes personally liable for providing the authorities with an amount equivalent to 37.875% (25% federal and 12.875% provincial) or 80% (50% federal and 30% provincial) of the selling price, depending on the circumstances. It is up to the notary to ensure compliance with these tax law provisions in order to properly protect and advise the buyer client—this is done by holding back the proceeds in the notary’s trust account if the certificates of compliance have not been issued before the signing of the deed of sale.
As the cheque is drawn on your notary’s trust account, they must be very careful before issuing a new cheque to avoid a situation where money from another client is being used to honour the lost cheque if it is presented for cashing after a new cheque is issued. For more details on this topic, we invite you to read point 8 of the file on fraud and money laundering (p. 13) and point 1 of the text on accounting and trust accounts (p. 16) from Entracte magazine Winter 2021, vol. 29 number 4 [in French].
A power of attorney allows you to authorize a person to act on your behalf while you still have the capacity to act on your own, but are unable or unwilling to do so (e.g.: travel, hospitalization, loss of physical autonomy, etc.). The mandate of protection is intended to be used only after the occurrence of mental incapacity and the recognition of this incapacity by the court. Signing a power of attorney and a mandate of protection can therefore meet two different needs. They can be signed in separate documents at different times. They can also be signed in a single document. It is up to your notary to evaluate with you the most appropriate way to do this to meet your needs.
To verify the validity of an electronic copy of a technological notarial act, consult the procedure.
Note that the Chambre des notaires does not hold any notarial deeds. Deeds executed by notaries are not sent to the Chambre, instead notaries keep the deeds in their own records and only report the existence of testamentary dispositions and protection mandates to the appropriate registers. If you would like to search for a will or protection mandate, we invite you to read the relevant procedure.
Depending on the situation, deeds can also be kept by a provisional custodian, an assignee or the Superior Court.
To obtain a copy of a notarial deed, you must:
If you know the name of the notary who executed the notarial deed, use the Find a notary search tool (second tab called “Check whether a notary is registered on the Order’s listing”).
o Make sure to enter the exact spelling of the first name and last name, as registered in the Order’s roll, otherwise you will not get any results.
o The search results will indicate the contact information of the notary and/or the holder who can deliver an authentic copy of the deed, subject to providing the required proofs and professional secrecy.
o If there are multiple holders, refer to the year of the deed you are looking for to get the contact information of the current holder.
If you don’t know the name of the notary who executed the notarial deed, use the Find a notary search tool (first tab called “Find a notary in private practice”) to find a notary nearby who can help you with the process.
If you’re wondering whether you should rewrite your will or just add a codicil, your notary can help by explaining why a codicil is not the right solution. For example, if you want to change multiple provisions of your will, the codicil may end up costing as much as a new will because of its complexity. Additionally, a codicil lets everyone involved see both the original will and the updates, which may cause resentment among your loved ones after your death. By drafting a new will, you make sure any changes remain confidential. Furthermore, it is possible that a notary will refuse to receive a codicil even if it is legally possible. The reasons for this can be diverse and it is up to the notary to explain them to you.
Yes. Signatures do not have to be reproduced for a copy of a notarial act to be considered authentic. They can be missing altogether or they can be mechanically reproduced (e.g., the document can be signed with the person’s first and last name). By making sure that your signature does not appear on authentic copies, your notary helps prevent forgery of your signature. If any third parties (such as banks or government offices) refuse to accept an authentic copy for that reason, you can refer them to the notice dated October 23, 2015, that the Chambre des notaires sent to all notaries.
The law provides that divorce automatically entails the annulment of legacies made in favour of the former spouse if the divorce took place after 1994. You must make sure that your divorce judgment has actually been rendered by contacting the court office or consulting the Register of Civil Status. However, the testator may have clearly expressed their will that the divorce does not annul the legacy. It is possible some clauses and terms of the will may still be effective. We invite you to consult a notary who will read the will and the divorce judgment and tell you what applies to your case.
The will may provide for the method in which the liquidator may renounce or resign. If not, a liquidator who decides to renounce their responsibilities after accepting them must notify the heirs or replacement liquidator(s) in writing if they are named in the will, render an account of the administration done so far to the heirs and replacement liquidator(s), and obtain a discharge from the heirs. Other parties involved in the succession may have specific requirements in this regard. It is best to check with them.
In a real estate transaction (sale of a home, condo or piece of property), the notary works for both the seller and the buyer, even though he or she is chosen by the buyer. As the notary works for both parties, each party must cover the costs associated with the verifications and disbursements made on its behalf.
Since the abolition of the mandatory notarial tariff in 1991, fees have been regulated by the Code of ethics of notaries. This Code provides that professional fees must be fair and reasonable according to certain criteria, including the time and effort devoted to the file, its complexity, and the notary’s experience and expertise. Contact your notary to find out more about their professional fees, taxes and the costs of opening a file.
Some notaries are accredited by the Order to act as identity verification agents (IVAs). These notaries are authorized by some government organizations to certify the identity of clients who want keys or certificates (digital signatures) to undertake electronic exchanges with them.