Succession must be determined before sale

Daniel Smyth

November 2011

The death of a family member is a very emotional and stressful time for the survivors. It may be important to consider, however, that the responsibility of managing the estate of the deceased, which could include the sale of an immoveable, has many complicated and important legal aspects. This is a good reason to have a will.

If there is no will or marriage contract, a legal succession exists, which falls under the Civil Code of Quebec. The first group of legal heirs in this situation includes: a surviving married spouse and/or the children of the deceased. If there is a married spouse and two children, then each receive one-third of the estate. If there are no children, the spouse receives two-thirds and the rest of the family (mother, father, brother and sister) receives one-third. The code does not recognize a common law spouse as an heir.

When there is no will, a declaration of transmission—a notarized act that identifies the deceased, the death, the fact that there was no will, legal heirs, and the cadastral number of the immoveable, must be made. This act is published in the public land registry office, making the heirs the owners of the immoveable. The title of acquisition passes to those indicated in the declaration. Then the immoveable can be sold.

If there is a notarized will, there is no additional step needed beyond the declaration of transmission. However, it must be proved that the notarized will was in fact the last will left by the deceased.

A non-notarized will requires an additional step because there are different methods of making wills in Quebec, which require validation. A holograph will is one that was written by hand and signed without witnesses. If a will is typed, or a fill-in-the-blanks form is used, the will must be signed before two witnesses.

With the above types, the signature must be validated because no notary was present at signing. This process is called probation.

A judgment from the courts stating that the signature and will of the deceased person is authentic is required. This requires a statement under oath from a person who knows the signature of the deceased person. Once probation is granted, which could take some time, the declaration of transmission can take place and the eventual sale of the immoveable can occur.

Next month, we will continue our discussion on testamentary succession and transfer of ownership.