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Before you write a Will in Québec

  • Québec Last Will and Testament

    Before you write a Will in Québec

    • 27 May 2023
    • Posted By : Tim Hewson

    There are three distinct steps in writing a Will; The Preparation, the writing and the Executing of your Will. This article focuses on the first stage; all the things you need to think about before you even start to prepare your Will. Your key appointments should be consulted before you include them in your Will. Or you run the risk of the appointee refusing to act, and the courts making the decision for you.

    Preparing to write your Will

    Before your write your Last Will and Testament it is a good idea to consider your key appointments and the distribution of your legacy.

    The Liquidator of your Will

    The term Liquidator is unique in Canada to Québec. The rest of Canada uses the title Executor or Personal Representative. This is the person with the responsibility to carry out the instructions in the Will. If you do not have a Will, the Liquidator is appointed by the courts.

    Your Liquidator has a number of important tasks:

    • Submit your Will to probate
    • Make funeral arrangements
    • Gather your assets
    • Secure your assets
    • Pay debts and taxes
    • Distribute your legacy to your legatees

    Because of the nature of the tasks, you need to find somebody who can diplomatically deal with your grieving loved ones. It is not uncommon for family members to act on verbal promises and start to help themselves to family heirlooms. Verbal promises have no standing in law and it is important for your liquidator to secure all assets. This is often the very first action and may include changing locks on doors.

    Your liquidator must also have the skills to handle accounts involving significant sums of money. They will have to pay debts and taxes, so try and find somebody who is reliable with their paperwork.

    It is important to help your liquidator as much as possible, and you can do this by keeping an ongoing inventory of your assets including bank accounts, investments, and even online digital assets. Without this, it is easy for some of your assets to be forgotten and never be included in your estate. The Bank of Canada estimates that half a billion dollars of unclaimed accounts are currently on their books.

    You can choose to name a friend or family member as your liquidator, or you can use the services of a bank or legal professional. Be very careful with hiring a professional because fees can be charged both as a percentage and as an hourly rate, and it can be expensive.

    If you do choose a friend or family member, make sure that you also name a backup or alternate in case your first choice is unwilling or unable to serve.

    It is also very important to check with your chosen liquidator that they are happy to perform the role. It should not come as a surprise to somebody that they have been appointed to this position as they are within their rights to refuse.

    Tutors for your children

    A Tutor or “personal guardian” will take legal responsibility for minors in the event of the death of the parents. When you appoint a Tutor in your Will, you are expressing your preference for who you would like to raise your children.

    This may be an emotional decision, but it is very important to cover this possibility, even if there are currently two living parents. It is not uncommon for both parents to be lost due to a common disaster. If you are the sole custodial parent, it is absolutely vital that you state clearly who you would like to take responsibility for your children should you die.

    As with the liquidator, it is important to consult with your chosen Tutor or Tutors before including them in your Will. They are allowed to refuse the appointment, and so it should not come as a surprise to them that you have included them in your Last Will and Testament.

    Distribution of your Legacy

    When most people think about their Will, they think about the distribution of their legacy. This is the part of the document where you describe who will receive each of your assets and possessions.

    Your assets include sums of money, family heirlooms, sentimental items like family photographs, investment accounts, your house and car. Everything that you own.

    Often a Will has a sole legatee, and simply states that "my entire legacy will go to my spouse". But it is an opportunity to be creative.

    You could consider a charitable donation for example as either a sum of money, or a percentage of your entire estate.

    You could leave a sum of money to a favourite niece or nephew.

    If you have experienced kindness from a friend or neighbour, then you can recognize this in your Will.

    For every legatee named in your Will, you should also consider a backup or alternate. Just in case your first choice legatee is unavailable to receive the legacy for whatever reason.

    Your Will is a powerful document which is why dying without a Will is such a pity.

    In summary

    It makes sense to think about your key appointments and the distribution of your estate before you start to work on your Will. This will save a great deal of time when you start to work on the document.

    Before using the Québec Will Kit, you should also read the guidebook that is included.