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.