Notaries’ legal expertise enables them to advise you on all succession-related decisions, so that nothing is left to chance. The liquidator may also call upon a notary for guidance in the steps to take.
Without a will, the law will decide who gets your property, which could penalize your spouse.
In the absence of a will, the law determines who inherits your property. The succession is then called “legal” or “intestate.”
Without a will, your de facto (common law) spouse cannot inherit
If you and your spouse are not legally married or in a civil union, you will not inherit from each other. This rule applies even if you lived together as spouses and even if you have had children together.
How much will my spouse receive upon my death if we are married or in a civil union?
In this case, if you do not leave a will, several scenarios are possible. For example, if you have children or grandchildren, your spouse will only be entitled to one third of your property. This means that suddenly your spouse could end up part owner, with your children, of the property that belonged to you before your death.
If you have not had or adopted children and your father or mother is still living at the time of your death, your spouse will only be entitled to two thirds of your property. According to the law, the other third is for your father or mother. For example, your RRSPs will be split between your spouse and your parents.
In the interests of your spouse and your loved ones, it is important to make a will, regardless of your age and the value of the property you own. Your notary will also have very good advice on planning a succession for a blended family and children from previous unions.
If you are responsible for the liquidation of a succession, your notary could be of great help.
The death of a loved one is an emotionally destabilizing situation and the liquidation of a succession often raises difficulties that the deceased could not have anticipated. In addition, the liquidator may not fully understand their role and their responsibilities to other family members.
Guiding the liquidator Liquidating a succession is a complex exercise. The law imposes rules and a specific procedure on the liquidator (formerly known as “executor”) to fulfill their obligations: making an inventory, paying debts, distributing property, etc.
Making sure the liquidator does not incur liability The requirements of liquidating a succession include preparing an inventory of the deceased’s property and carrying out several tax-related procedures (filing the deceased’s tax returns, making tax choices whose consequences may prove beneficial to the heirs, obtaining certificates authorizing the handing over of the property, etc.). These are important steps and the liquidator must carry them out without undue delay; otherwise, the heirs could be prejudiced and the liquidator could be personally liable.
Preventing heirs from being personally liable for the debts of the succession “Being personally liable” for the debts of the succession means that the heir must “pay out of pocket” for the debts of the deceased. This can occur when an heir accepts a succession without knowing whether it has more liabilities (debts) than assets (property). In this case, the succession is insolvent since the value of the property is less than the amount of the debts. The deceased’s creditors then have the right to claim payment from the heir, even if the property received is insufficient to pay for it. Please note: the acceptance of a succession does not have to be explicit. It can be tacit, resulting, for example, from simply transferring the balance from the deceased’s bank account to the heir’s account or contacting the Société d’assurance automobile du Québec to register the deceased’s vehicle in the heir’s name. In matters of succession, it is therefore in an heir’s best interest to be patient and ensure that all the formalities required by law have been completed. If in doubt, consult your notary. Their advice could help you avoid some serious issues.
If you want a notary to read your will after your death, simply include a clause to this effect in your will.
At one time, the very first step towards the complete liquidation of a succession was the reading of the will. This was a solemn task, performed by the notary in the presence of all the heirs. This practice was eventually abandoned, but today, notaries are advocating its reinstatement.
A clause on the reading of the will Do you want your will to be read by a notary after your death? It could not be simpler. All you have to do is include a clause to this effect in your will. Your notary will convene all your heirs when the time comes.
The advantages of this practice The reading of the will allows the notary to fully inform the heirs about the contents of the will and its consequences. It is also an ideal opportunity for the notary to answer any questions the heirs may have, in order to clear up any misunderstandings that could lead to conflicts. The notary will also explain the liquidator’s role and responsibilities. All heirs will then be aware of the steps the liquidator will have to take and the approximate time these will require. The liquidator and the heirs will also be reassured as to the steps to be taken to respect the deceased’s last wishes.
A will drawn up or prepared by a lawyer must also be probated, as it is considered to be a will made before witnesses.
The notarial will and any amendments made to it before a notary do not have to be verified through a probate procedure. Since the law recognizes notaries as public officers, they confer authenticity that obviates the need for verification on the wills they execute. This is why a notarial will takes legal effect at the very moment of death.
This is not the case for the holograph will, which is entirely handwritten and signed by the testator, nor for the will made before witnesses.
Liquidating (settling) a succession is a complex and delicate process. The law provides that the property of a deceased person be passed on to their heirs and imposes precise rules for liquidating the succession. A notary can ensure that the procedures prescribed by law are properly followed and that any legal problems that may arise are appropriately resolved.
The liquidation of a succession is often a daunting task for the person in charge of it. The liquidator can even be held personally liable if an heir, legatee or creditor claims to have been harmed because the liquidator was negligent in their duties.
The liquidator can mandate a notary to liquidate the succession. The notary will report to the liquidator regularly. As a precaution, the liquidator can also retain the notary’s services as an advisor from time to time, on an ad hoc basis. Either way, it is always advisable to consult a notary at the very beginning of the succession liquidation process.
The steps of a testamentary liquidation must be carried out in strict accordance with the applicable rules. A notary can help the liquidator to carry out their duties.
Liquidating (settling) a succession involves several steps that must be carried out in accordance with the law. They begin on the day of death and continue until the final handing over of the property to the heirs.
The usual procedure includes:
- The funeral
- Obtaining proof of death
- Performing a will search
- Opening and inventorying any safety deposit box
- Opening an account in the name of the estate with a financial institution
- Probating the will, if it is a holograph will or made before witnesses
- Analyzing testamentary dispositions
- Determining the heirs
- Appointing the liquidator
- Making the inventory
- Claiming life insurance, pension and annuity benefits
- Filing income tax returns and paying any taxes
- Liquidating the family patrimony and matrimonial rights where applicable
- Publishing any notice required by law
- Exercising the heirs’ option
- Managing the succession’s assets
- Paying debts and specific legacies
- Delivering the property
- Rendering of accounts
- Partitioning the succession’s assets
The liquidator may, as a precaution, enlist the services of a notary to offer advice at the outset of the process.
Consult Service Québec’s “What to do in the event of death” guide.
The Register of Testamentary Dispositions of the Chambre des notaires makes it possible to trace the existence of all notarial wills.
A will allows you to express your wishes regarding the distribution of your property after your death. You can designate the person or persons to whom the property will be bequeathed and the share that each will receive. If you do not have a will, the law will decide on your heirs and their shares.
A thorough search of the deceased’s personal belongings will also be required to determine whether the deceased left a written record of their last wishes. Often, these searches lead to a personal note or a copy of a notarial will.
But how can you ascertain that this will is indeed the person’s last will and testament? To answer this question, the Chambre des notaires du Québec created a register in 1961 in which the existence of all notarial wills must be recorded. This register should be checked to determine both whether the deceased left a will and whether the will in hand is the last one.
Thanks to this register, the original of a notarial will can be traced at any time, and copies can be issued by the notary who executed it. This ensures that your wishes will be respected.
It is also important to contact the Barreau du Québec to undertake the same process in order to obtain a search certificate issued by the lawyers’ registers.
It is wise to consult your notary before accepting or renouncing a succession. Liquidating a succession without following the rules of the Civil Code could have negative and costly consequences.
With few exceptions, no one is obliged to accept a succession. The law provides that the heirs are liable for the debts of the deceased up to the value of the property they inherit. However, the heir must scrupulously follow all the steps provided for in the Civil Code for the liquidation of a succession. Once the succession has been accepted, it is no longer possible to change one’s mind and renounce it.
The heirs may be held personally liable for the debts of the succession beyond the value of the property they receive if they exempt the liquidator from making an inventory.
A successor is considered to have accepted the succession if there is no notarized document indicating this renunciation. Certain acts or omissions also result in the acceptance of the succession, for example, the use of succession property as if it were personal property.
An insolvent succession is usually renounced when it has more liabilities (debts) than assets (property). The renunciation must be made by notarial act.
Time limit for renouncing or accepting
The heir has six months from the opening of the succession, i.e. from the date of death, to accept or renounce it, or six months from the time when their right as successor arises. Renouncing a succession within the time required by law is crucial; otherwise, you could be considered to have accepted it.
The division of the family patrimony and the matrimonial regime with the spouse of the deceased necessarily has an impact on the value of the succession.
Death puts an end to the marriage and civil union, resulting in the division of the family patrimony and the matrimonial or civil union regime. The spouse must be given the money from the partition of the matrimonial regime (community of property or partnership of acquests) and the family patrimony. It is important to consider the other special protections stipulated by law for the surviving spouse, such as the payment of a compensatory prestation, alimony and certain preferential allocations. This division will affect the composition of the deceased’s patrimony.
Only a legal professional has the necessary expertise to accurately assess the respective rights and obligations of former spouses or civil union spouses following a death. With their legal training and skills, notaries are the ideal legal professionals to advise you.
It is possible that the will provides for the method of renunciation of the liquidator. If this is not the case, the liquidator who wishes to relinquish his office after having accepted it must notify the heirs in writing, give them an account of his administration and obtain a discharge of liability from them.