Maybe you've been appointed a Liquidator of an estate, or perhaps a love one has died. There is a lot to be done after a person has passed away and much of this includes dealing with the courts and Revenu Québec.
Unfortunately, all of this work has to be done at an emotionally vulnerable time. And usually falls on the loved ones most affected by the passing of a family member.
Fortunately the Provincial Government of Québec have one of the best, interactive tools for determining what needs to be done when a person dies depending on their family and financial situation. The tool is available here
The Death needs to be Declared
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.
The structure of a Will
There are key components that must be included in every Will for it to be considered a legal Last Will and Testament. All well written Wills have the following structure;
The Wills that you can create through the service at www.quebecwillkit.ca include all of these key components.
Dying without a Will in Quebec
One of the most common misconceptions about one's estate or "succession" is that if you don't have a Will, everything will automatically pass to one's spouse. In some cases, this does happen, but the laws of distribution of an estate (intestacy law) are far more complicated than this. In fact, it is so complicated that the Québec government have published a table in an attempt to clear things up.
You can click the image to the left to view larger, but you first need to look at the colour coding at the bottom of the table to see which situation applied to you. Let's take a few examples.
Scenario 1: You are married with one child:
The second row in the table takes effect. Your child would receive a 2/3 share of your succession, your spouse would take a 1/3 share. This is one of the most surprising scenarios for most people. It is common to assume that one's spouse would receive everything, but in reality the child would receive that vast majority of the succession. If the child is a minor, then the legacy would be placed in trust until the child reaches the age of 18 (the legal age of majority in Quebec).
Scenario 2: You are married, but do not have any children:
Again, this is a very common scenario, and very poorly understood. The distribution of the estate or succession, would entirely depend on other living relatives including parents, brothers, sisters or even nieces and nephews. Supposing that you have no siblings, both parents have passed away, and you are married. Did you know that your spouse would actually lose one third of the succession to your nieces and nephews? In almost all situations, your spouse would not receive the entire succession; if your parents are still living, then they will receive one third of the succession, if your parents have passed away, then your siblings would share one third.
Scenario 3: You are not married, and do not have any children:
This is an interesting scenario because some people feel that in certain circumstances the entire successions would go to the government. In reality this rarely happens because there would have to be no living relatives. If you do not have a spouse, children or siblings, then your parents would receive your full succession. If you do have siblings, then your parents would receive half, and your siblings would receive half.
The key message in describing these scenarios is that the intestate distribution (dying without a Will) would probably not match your intentions if you took the time to describe your wishes. The only way that you can describe your intentions for the distribution of your succession is through a legal Last Will and Testament. In Québec you are able to write your own Will, and simply sign the document in the presence of two witnesses to make it legal. There are other important appointments that are made within a Will, but the over-riding purpose of the Will is to describe how you would like your succession to be distributed among your family, friends and potentially charitable organisations.
It only takes about half an hour to prepare a Will, and it does not need to be an expensive process. Every adult should have a legal Last Will and Testament in place.
You may have heard it many times, but every adult should prepare their Last Will and Testament. In this article I'm going to explain the power of the document, the consequences of not having a Will in place, and then talk a little about the different ways to prepare your Will - it really doesn't have to be an expensive or inconvenient task.
Most obviously your Will is going to determine who receives your estate, or succession after you have passed away. This gives you the opportunity to recognise the influences of different people in your life, and also organisations that may have impacted you. It allows you to leave either sums of money, or physical assets and possessions to beneficiaries (or "legatees") who you feel are the most deserving. You may have a charity that you have supported throughout your life, or you may feel that you haven't been as charitable as you would have liked to have been...your Will is your opportunity to address this.
You will also be making key appointments in your Will. You will name your Liquidator (or Executor, or Trustee). This is the person with the responsibility to carry out the instructions in your Will, organise your funeral, and potentially take care of any trusts that have been set up for your minor children. It is a vital appointment, and not one that you would want to leave to chance.
You will also be naming a guardian, or tutor, for your minor children. If something were to happen to both parents, then you can in your Will name the person that you regard as the most qualified to take care of your children. This could be a family member, or family friend. It is an appointment that required a great deal of thought and consideration, and not one that should be made by a judge who is unfamiliar with your family's situation.
If you don't have a Will, these appointments will be made for you. And your succession will be divided according to the Québec intestate laws. So, if you have a spouse and children, the spouse receives 1/3, the children share the other 2/3. If you have a spouse and no children does the spouse receive everything? No. The spouse will receive 2/3 and your parents will share the other 1/3. What if you have no spouse or children, then your parents will receive 1/2, your brothers and sisters will receive 1/2. No brother's and sisters? then your parents will receive 1/2 and your nieces and nephews will receive the other 1/2.
You can probably see that the result is highly unlikely to match your true wishes. Also bear in mind that without a Will the process is complicated and can take a much longer period of time.
In Québec, there are three different types of Will recognised by the courts;
1) Notarial Will: Made before a notary and at least one witness. This type of will is governed by strict formal requirements and must be signed in the presence of a Notary who will then add their seal to the document. It is exempted from probate, however it can be expensive and inconvenient to arrange an appointment with a Notary. It is also more difficult to keep updated when changes are required.
2) Holograph Will: This is handwritten entirely by the testator and signed by them, with no other formal requirements. However, the will must extremely clear and unambiguous, and the interpretation of the instructions in the Will are made by a judge during the probate of the will. This type of Will typically costs nothing, but they frequently contain errors or omit critical clauses.
Will made in the Presence of Witnesses
3) Will Made in the Presence of Witnesses: sometimes called a “Will following the form derived from the laws of England”. It must be signed by the testator before a minimum of two witnesses of full legal age, who must also sign the will. It is not required that the will be written by the testator; it can be drafted by another person. To be legally valid the testator must declare in the presence of the witnesses that the document effectively constitutes his or her will.
The Québec Will Kit allows you to create the third type of Will, affordably and conveniently.
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.