Wills in Quebec
Here are a few common reasons that people claim when justifying why there is no point in writing a Will:
Myth "I don't really care who gets my things. I'll be gone anyway."
Without a Will, your property may not go to the people that you wish to benefit. In Québec, there is a law that decides how property should be distributed if a person dies “intestate” (without a Will).
The actual administration of your succession will also be complicated and difficult. The courts will usually decide who will act as a personal representative or “Liquidator” (formerly called the “testamentary executor”), for distributing your possessions and the courts will determine who will get what. This may lead to acrimonious legal disputes between your survivors.
Note that if you have no heirs, all of your assets, property and possessions can pass to your local government. The effort required to draft your Will is insignificant compared to the difficulties that dying without a Will presents to your survivors.
"It's obvious who will get everything. It will go to my spouse."
Québec intestate law will determine who will receive your possessions, which may or may not reflect your intentions. If you die without a Will and you are married, your assets will not automatically go to your surviving spouse. Québec succession law may determine that others, including children, may be entitled to a share. The table below shows how your succession would most likely be divided if you do not have a Will.
"I don't have a succession of any value."
Even if you don't believe that you have a succession of any value, your death itself may generate a sizeable benefit. For example, your legatees (people receiving part of your legacy) may be entitled to the proceeds of a life insurance claim, a wrongful death suit, or a claim in the event of some negligence resulting in your death. These can be significant sums of money.
Quite clearly, there is never a situation where a Will is unnecessary. You should draft a Will while you are still young and healthy, even if you don't feel that your assets are substantial. There is absolutely no benefit to waiting until you are older.
Whatever your reason may be, you should know that it is extremely important that you have an up to date Will.
To die without a Will is irresponsible and places a tremendous burden on your survivors. Do not put it off any longer.
Ten reasons why you would update your Quebec Last Will and Testament
Throughout your life, you are free to update your Last Will and Testament as often as you like, either by making an amendment, or by drafting a new Will. An amendment to an existing will is called a modification or “codicil” and must follow the same form and structure of a full Will (i.e. it must be properly signed and witnessed). Consequently, writing a modification is not usually much of a shortcut. In fact, it can lead to significant confusion.
It is strongly recommended that if you wish to make changes to your Will, that you create a new document, and revoke and destroy all previous Wills. Never make handwritten amendments to your printed Last Will and Testament.
Not updating a Will can be as bad as not having a Will at all. Even if you feel that there have not been many changes in your life, your Will should be reviewed every year on a routine basis.
Beyond the routine reviews of your Will, you should consider updating your Will in the following circumstances:
If somebody named in your Will dies
There are a number of people named in your Will; your Liquidator (Executor or Trustee), Tutors (Guardians for children) and legatees (beneficiaries). If anybody names in your Will dies before you, then you should update your Will as you will no longer have a backup plan. A Will usually takes into account alternate plans for situations where for example, you are involved in a common accident with a family member, but for your alternate plan to work, everybody named in your Will must be alive.
Often a Will includes a distribution of the succession in such a way as to be fair to family members. You may for example leave your car to one child and a sum of money to the other in order to be fair. If there are any significant specific assets identified in the Will e.g. a house, car, boat, cottage, then the Will would need to be reviewed if any of these assets are sold. Likewise, if you make a significant purchase, or receive a significant windfall yourself, you would need to review the distribution of your succession.
If you remarry, separate, divorce or cohabit
Although Quebec is one of three Provinces that no longer revoke a Will on marriage, it is still important to review the Will if your marital status changes. Not least of which because your key appointments would no longer be appropriate. The appointment of liquidator would almost certainly need to be changed after a separation or divorce.
The Wills and Estate planning laws vary across Canada, and although Will written in one Province are accepted in other Provinces, it is a good idea to update your Will if you change the Province or Territory in which you are living. If you move to another country, then you will absolutely need to update your Will as a Quebec Will may not be accepted by the probate courts of your new home.
If your Liquidator or alternate Liquidator no longer wishes to serve
The responsibility of being an estate Liquidator is not one that should be taken on lightly. There is a great deal of administrative work to be done including locating assets, filing taxes and providing full reports to the legatees of the estate. If there is a minor trust involved, the Liquidator may be involved in the estate for many years. It is not unusual for a Liquidator to be selected because of their maturity, but over time, they become too mature and enter their senior years. It is not a task for an elderly person and certainly parents may not be the best choice of liquidator as you and they get older.
If any new children are born, adopted, or pass away
The change of status of your children has a profound effect on the distribution of your estate. If one of your children were to pre-decease you, you have to consider what is going to happen to their share of the succession; would it all go to other children, or do they have family of their own. If you update your Will, you have an opportunity to address an entirely new family structure and make sure that your plans still reflect you wishes.
Everybody named in your Will performs a critical task, whether they are the Liquidator, Trustee or Tutor to your children. You would not want to leave to chance the possibility that they will not be around to perform the role assigned to them. At any moment, you have to select the best team possible to perform these roles. Also, if any of your legatees is sick, you must give consideration to your plans for their share of the succession.
If your children turn 18 years of age
With minor children, your Will would include trusts as well as name Tutors. As your children become adults they earn the right to inherit directly their share of the succession. You would need to update your Will to change references to the trusts and tutors.
This is perhaps the most common reasons for an update and is the result of life just happening. People come into your life or fall out of favour. Organizations and charities may become a significant part of your life, and you may wish to recognize them in your Will. There are a number of reasons why you may feel that the distribution of your succession no longer reflects your true wishes, and it is your right to update your Will to reflect these changes.
If you wish to redistribute your property in a different way
There is a chance that your assets may be distributed while you are alive. For example, you may lend one child some money, or pay for one child's education or healthcare. When this happens, you may wish to change the distribution of your estate to reflect the different treatments that legatees received during your lifetime.
Even if you have a Will, consider if any of these situations applies to you, and think about whether it is time for a new Last Will and Testament.
Quebec Will Kit
We hope to provide you with some interesting articles on Will writing and estate planning. Please feel free to comment on anything that you find interesting.