Wills and testament : How does it work?

Why write a will?

People will write a will to put their affairs in order and simplify the lives of their loved ones after they have passed.

A will allows people to determine the distribution of their assets themselves. It also helps prevent conflict and legal headaches if there is a disagreement between potential heirs.

Having a will means planning who will inherit your property and to what extent. The clearer it is, the fewer questions you leave your loved ones about your final wishes.  

If you die without a will, your property is divided by default, according to the rules of your province or territory.

It is beneficial to everyone who has assets to prepare a will.

People with smaller estates sometimes feel that it is not worthwhile to plan their estate. But the reality is that liquidating an estate without a will can be more complicated and cost your loved ones more money.

When and in what form should you make a will?

Notaries do not exist for the rest of Canada, so holograph wills, and wills made before witnesses are more common.

The notarial will 

A notarial will is prepared and signed by a notary and added to the register of wills of the Chambre des notaires du Québec.  

It will not be subject to probate and therefore more difficult to contest.  

In Canada, the notarial will exists only in Quebec, not in the other provinces. 

Holographic wills 

This document must be written and signed by the testator (the person making the will for themselves). It does not require any witnesses to be present. 

It must be subject to a probate procedure, which can delay the process and add additional costs. 

Wills made in the presence of witnesses

Written by a third party or by technical means and signed by the testator in front of witnesses.  

Like the holograph will, it must be subject to a probate procedure, which adds time and cost to the liquidation of the estate.   

Who inherits if there is no will?

In Québec

The provincial rule of law determines how the estate will be settled in the absence of a will. This is called legal devolution, or a succession ab intestate.

The persons entitled to any inheritance will be:  

• The spouse of the deceased  
• Immediate family members  

In Quebec, the estate is divided according to the following criteria:  
 

If the deceased was married and had children.

• The surviving spouse will receive one-third of the estate  
• The remaining two-thirds will be shared among the children of the deceased  
   

If the deceased was married and had no children.

• The surviving spouse receives two-thirds of the estate 
• The parents of the deceased receive the remaining third
• If the deceased has no parents, this third will be divided among their siblings  
• If the deceased has no parents or siblings, the entire estate will go to the surviving spouse  
   

If the deceased was not married but had children.

• The entire estate will be divided equally among their children
   

If the deceased was not married and had no children.

• Half of the estate will be distributed to the deceased's parents 
• The other half will go to their siblings 
• If the deceased has no parents, the entire estate will be divided among their siblings 
• If the deceased is an only child, the entire estate will be given to their parents
   

Summary of the distribution of inheritances without a will in Quebec: 

 

Source: Table of distribution of an inheritance in the case of legal succession, Ministère de la Justice du Québec (link to external site)
 

Elsewhere in Canada

In British Columbia, Alberta, Saskatchewan and Manitoba, common-law partners and spouses have the same rights. This means they can still inherit assets in the absence of a will.  

However, the criteria for qualifying as a "common-law partner" vary from province to province. 

In all three provinces, the concept of "person entitled to inherit" is broadened.  

In the absence of immediate family (surviving spouse, children, parents, siblings and nieces and nephews), the following people are eligible to inherit assets: 

• Grandparents 
• Great-grandparents 
• Uncles and aunts 
• Great-uncles and great-aunts  

In Ontario, common-law spouses are excluded from the division of the estate.  

However, they may be able to claim support if the family relationship with the deceased meets certain criteria.

Can I make a joint will?

In some Canadian provinces such as Ontario, Alberta and British Columbia, joint wills are permitted by law. However, they are riskier for the surviving spouse. There can be reservations about enforcing a couple's mutual wishes, and there is little case law on the subject. 

Quebec prohibits joint wills on pain of nullity. A will is a personal act that cannot be made jointly with another person, even if it is a family member, such as your spouse or sibling.  

That said, you could include a will clause in your marriage contract. In this case, the surviving spouse will inherit all the deceased's property. 

Be careful: this type of clause is designed to benefit both spouses.  

If both spouses die at the same time, the succession no longer holds, and it will be as if no will had been left.
 

How is an estate liquidated?

First, the executor or estate administrator must be identified, then the family patrimony must be divided if the deceased was married.  

To identify the executor and the heirs, you must rely on the provisions of the will. The liquidator is the person who is responsible for settling the estate by administering the property until it is distributed to the heirs.  

This person will also be responsible for:

● Closing the deceased's accounts  

● Preparing and filing tax returns

● Collecting money owing  

● Paying the deceased's debts (any expenses incurred will be paid for using the estate's assets) 

If you have not identified an executor or if you have not written a will, this role will automatically fall to your heirs.  

Together, they can choose to elect an executor from among themselves. If there is only one heir to the estate, that person will automatically be named as executor.

Expert advice: this is a relatively complex process that involves several steps and participants. The executor can ask a professional to assist him or her.  

Many notaries, lawyers and accountants offer this type of service. The cost of these services varies depending on the size of the estate and the tasks involved.  

People sometimes have the impression that an estate can be settled quickly. It can take almost a year or more to complete to comply with all the rules and taxes of the province. 

To complete a settlement, the deceased's income tax return for the year of death must be filed, in addition to a return for the estate itself.  

Once these two documents have been forwarded to the appropriate tax authorities, the federal and provincial governments will in turn issue certificates of release and authorization to distribute the assets of the estate.  

How does estate law vary between provinces?

Technically, a will is valid across the country, regardless of its form. It’s usually subject to a legal verification procedure before it can be used. However, what applies to wills in Québec may not necessarily apply to the rest of Canada.

In most Canadian provinces, you can prepare a holographic will or a will made in the presence of witnesses (the latter can be a lawyer). 

Another point to remember is that if you own property outside of Quebec or even outside of the country, you have a double interest in preparing your estate.  

Own an apartment in Florida? Write a will in the United States, specifically for the property in question and draft it in English.  

This will make things much easier and will save your heirs a lot of trouble. 

Estate planning is vital to ensuring that your last wishes are respected and that your loved ones are taken care of. Don't hesitate to discuss your options with an advisor who can help guide you through the process.

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