Notaries are specialists in succession law and have all the required expertise to draft acts. They ensure that your will complies with the laws in effect and that it legally reflects your last wishes.
If you do not have a will, the law will decide on your heirs and the share they will receive
A will is the best way to make your wishes known after your death. In this document, you will be able to indicate your wishes regarding the distribution of your property by designating the person or persons to whom you wish to bequeath it and each of their shares. Making a will is not mandatory, but it is preferable. If you do not have a will, the law will decide on your heirs and the share they will receive. This is what we call “legal succession” (or “intestate” succession). However, the persons designated by law are not necessarily the ones you would have designated yourself. Moreover, in notaries’ experience, the risk of conflicts between heirs is higher in this context.
The will also allows you to appoint a liquidator (formerly called an “executor”). The liquidator will be responsible for the administration of the succession and the distribution of property. It must therefore be a reliable, honest person in whom you have full confidence, because liquidating a succession is a task that requires tact and good judgment. The liquidator you choose does not have to be an expert in the field. The person chosen will be able to consult with the required experts, such as a notary, in particular. In the absence of a will, your legal heirs appoint the liquidator.
It does not matter how much property you have. What does matter is that it is passed on without complications.
Only notarial wills take effect upon death, unlike holograph wills and wills made in the presence of witnesses, which must undergo a probate procedure by a notary or court.
Quebec law recognizes three forms of wills: notarial wills, holograph wills and wills made in the presence of witnesses.
- A notarial will is drawn up according to your instructions by a notary. With the notary’s professional legal drafting skills, your last wishes will be expressed clearly and in accordance with the requirements of the law.
- A holograph will is a document entirely handwritten and signed by the testator. When the succession is opened, the holograph will must be probated by a notary or a court. This procedure requires a sworn declaration by a person who is not mentioned in the will and is familiar with the deceased’s handwriting and signature. It also generates significant costs in addition to considerably delaying the liquidation of the succession.
- A will made in the presence of witnesses is a document that need not be written by the testator, but must be signed by the testator and two witnesses at the same time. It must also be probated by a notary or the court after the testator’s death. One of the witnesses will be called to confirm that the formalities are compliant.
A notarial will takes effect upon death and is not subject to probate. The law recognizes notaries’ status as a public officers, which enables them to invest wills with authenticity. Once they execute the will, the notary will also register your will in the Register of Testamentary Dispositions of the Chambre de notaires du Québec. As the notary must keep the original in a safe place, it is protected against loss or damage and may easily be traced after the testator’s death.
A notarial will is the most advantageous in terms of legal effectiveness and protection.
This will is executed before a notary and a witness. It offers the greatest benefits.
A quicker and less expensive way to settle your succession
A notarial will takes effect upon death, which is not the case for the other two wills recognized by law. Holograph wills (handwritten and signed by the testator) and wills made in the presence of witnesses will have to be probated before a notary or a court. This step delays succession settlement and incurs higher legal fees than the fees associated with drawing up a notarial will.
Compliance with the law and your last wishes
A notary will draw up your will in clear terms, thereby preventing any ambiguity that could lead to conflicts. Your notary’s extensive knowledge ensures that your wishes will be conveyed in legal terms, in compliance with all the requirements of the law.
Legal effectiveness after death
It is not advisable to write your own will. If it does not meet all the conditions prescribed by law, it could be invalid and fail to produce any of the desired results. In addition, certain clauses inserted in your will could have an undesirable effect.
Protecting your loved ones
A notary will review the different options for protecting your loved ones with you. For example, by means of a specific clause, the property you leave to your heirs at your death can be exempt from seizure. Your notary can explain the consequences of including or not including the proceeds of your life insurance policies in the legacies in your will. They will also advise you on the protection of minor children, or the arrangements to be made for certain heirs who are likely to mismanage their inheritance.
Traceability and protection of the will and its contents
The notary has the obligation to keep the original of your will in a safe place. It is thus protected against theft, loss, damage or destruction, and it cannot be changed by anyone.
The notary must also register your will in the Register of Testamentary Dispositions of the Chambre de notaires du Québec. When the time comes to settle your succession, the liquidator will be able to quickly trace the identity of your notary in order to obtain an authentic copy of the will if necessary.
Review your will and protection mandate regularly. Over time, modifications may be required. Consult your notary about this.
Certain events should prompt you to review the terms of your will or mandate:
- A change in the law
- The introduction or abolition of certain tax measures
- The onset of incapacity
- The illness or death of your spouse or the person who must represent you in the event of incapacity
- One of your children is now a person of full age
- A first or second marriage or a civil union
- A new de facto union (common-law relationship)
- The birth of a child
- A divorce or separation
- A death, etc.
Notaries, who specialize in succession planning, are the right advisors for a testamentary trust. They will be able to tell you whether this type of planning is appropriate for you.
Protecting vulnerable heirs
It is worrying to imagine that an heir may squander money accumulated over a lifetime. You may also be worried about the fate of a disabled child after your death, even if you are leaving a substantial sum to them. Fortunately, a legal tool exists that gives you control over the use, management and distribution of succession assets: the testamentary trust.
Providing long-term guidance
A testamentary trust allows you to give instructions during your lifetime regarding the management of the amounts bequeathed to one or more persons upon your death. In the context of an “ordinary” succession, bequeathing a sum or asset means it will be handed over to the designated heir. With a testamentary trust, the legacy is not given directly to the heir, but rather to a trust, which will manage the money according to the instructions in your will. For example, the trust may be required to pay an annuity to the surviving spouse until their death, at which time the balance will be divided among the children. The trust may also be responsible for paying for a sick or disabled child’s medical care, or for the schooling of minor children until they turn 18 or 21, for example.
Protecting those who are more vulnerable
Testamentary trusts are not just for the wealthy. This succession planning method is accessible to everyone, regardless of the size of the succession. Its flexibility makes it adaptable to any family situation. Testamentary trusts are intended to protect loved ones who, for one reason or another, are more vulnerable.
The liquidator may, as a precautionary measure, enlist the services of a notary for advice from the beginning of the liquidation of the succession.
The person designated as liquidator (formerly called an “executor”) is usually a trusted relative or friend of the testator. The heirs will make this choice themselves if the deceased did not leave a will or if the will does not provide for it.
The liquidator’s powers and duties
The powers and duties of the liquidator are provided for by law. The testator may nevertheless modify them to achieve specific objectives or to facilitate the liquidation of the succession and the liquidator’s work.
The liquidator is responsible for ensuring that the deceased’s wishes are carried out in full. The law sets out rules and specific procedures for the fulfilment of the liquidator’s obligations: making an inventory of the deceased’s property, paying debts, distributing property, etc.
Several important tax steps must also be taken, such as filing the deceased’s tax returns, making tax choices whose consequences may be beneficial to the heirs, obtaining certificates authorizing the release of property, etc.
A succession’s liquidation is often a daunting task. Liability can also be incurred if an heir, legatee or creditor claims to be prejudiced by the liquidator’s’ failure to meet their obligations.
Since the liquidation of a succession is a complex exercise, the appointed liquidator may entrust a notary with the mandate to undertake it. The notary will report to the liquidator regularly.
It is the authentic or notarized nature of the decision to donate organs and tissues that assures relatives that the decision was made freely.
A decision regarding organ and tissue donation (acceptance or refusal) may be recorded in a notarial act, usually in a will or a protection mandate. The notary may also proceed by act of deposit. But regardless of the act chosen, it is its authentic (or notarized) character that is of interest as it assures relatives that the decision was made freely.
Any consent is then entered in the Consent Registry for Organ and Tissue Donations of the Chambre des notaires du Québec. You can also request that your refusal be recorded, for any reason. Thanks to this registry, everyone has the assurance that their wishes will be respected. It also ensures complete confidentiality, as only duly authorized persons, such as certain health professionals, have access to it. They can check at any time whether a person has consented to organ and tissue donation.
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.