If you don’t have a will, your loved ones may inherit complications

Joyce Blond Frank B. A., B.C.L., LL.M.

A will is a formal document that specifies how you want to dispose of all or part of your assets upon death. In order to be valid it must be drawn up according to specific provisions found in the Quebec Civil Code. A will can only be signed by one person; it cannot be shared.

You can go to a lawyer or notary for a will or you can write one yourself, called a holograph will.

A lawyer’s will is called “a will made in the presence of witnesses.” It must be signed in the presence of two witnesses who cannot benefit under the will. In order to take effect after death, it must be probated. This is a process by which the will is deposited into and examined by the court, which can take a few weeks. The original of the will is retained by the court and certified copies are issued upon request.

A notary’s will does not require probate and can be used immediately after death. Copies are provided by the notary upon request.

The holograph will must be hand-written in its entirety and signed by the testator himself. It, too, is subject to probate after death.

The principal provisions of a will are those in which you state to whom you wish to leave your property. One or more people may be designated, as well as charitable organizations. You may want to leave everything to one person or a certain portion to each of several people. You may wish to make specific bequests. In certain situations it might be advisable to set up a trust fund or to delay the payment of a legacy or to bequeath capital to one person and let another benefit from the interest. In some cases these are easy decisions to make, but in others they can be more complex, such as when there is property in another country, when matrimonial laws limit property ownership, when minor children are involved or in cases of combined families or common-law relationships.

Sometimes it may help to discuss the situation with a lawyer, notary or accountant as there may be tax implications involved as well. In your will you must also designate someone to carry out your wishes. In Quebec that person is called a “liquidator.” In other places he is usually referred to as an executor. You can name one or more persons, a trust company or both. The person you name can be an heir or not. You can provide for payment of your liquidator and for his replacement in the event he can no longer act. You can give your liquidator greater power than he has in law. For example, if you own an apartment building, the law permits him to operate and maintain it, but not to sell or mortgage it unless you give him the power to do so. Everyone with any assets at all should have a will, especially those with family responsibilities.

Wills should be reviewed whenever your family or financial situation changes. Changes in your situation do not necessarily mean your will must be redone. It can be altered with a codicil, a document that alters a small part of the will and leaves the balance untouched. It, too, must follow one of the forms indicated above.

If you do not have a will, the laws of intestate succession will be applied to your estate when you die.

Your heirs fall into categories: your spouse, which means the person to whom you are legally married and does not include someone with whom you are living common law; your descendants, which includes all children, even those from an earlier marriage with whom you have had no connection for many years; privileged ascendants, namely parents; privileged collaterals, namely brothers and sisters, and ordinary ascendants and collaterals, in other words, distant relatives. Contrary to popular belief, if you have no will, your spouse does not automatically inherit your entire estate upon your death. It is only in cases where you have no descendants, privileged ascendants or privileged collaterals that your spouse inherits your entire estate. If you have a spouse and descendants, your spouse inherits one third of your estate and your descendants inherit the balance. If you have a spouse and privileged ascendants or collaterals, your spouse inherits two thirds of your estate. If the surviving relatives are more distant, the rules become more complex. And remember, if you have a common-law spouse and distant relatives whom you haven’t seen in years, the latter will inherit unless you have willed it otherwise.

There are other problems as well when no will exists. Namely, who will act as liquidator? Who will find those distant relations? Who will administer or wind up your business? What will happen to the person with whom you’ve been living as husband or wife for many years? As a last resort, if you have no will and no relatives, the Minister of Revenue steps in and winds up your estate. Your assets and possessions may ultimately become the property of the Province of Quebec.

Correction: In last month’s column on leases an editing error altered the following paragraph, which should have read: “Two problems can arise here. First, is the delay provided in the notice to be counted from the day it is sent or the day it is received? The current law is from the day it is received.”