Settling an estate

The NOTARY: craftsman and master builder of the whole process

Settling a succession goes well beyond simply passing on property. It requires compliance with many legal, tax and administrative formalities. The notary’s involvement provides support to the heirs and the liquidator at every step of the process, to ensure a liquidation that complies with the law and with the wishes of the deceased.

Settling a succession involves many legal, administrative and tax obligations. Without adequate support, some steps may be delayed or omitted, which can complicate the liquidation of the succession and affect the rights of the heirs. The notary supports the liquidator throughout the process and guides them in fulfilling their obligations, to ensure a settlement that complies with the law and with the wishes of the deceased.

The steps

Settling a succession requires that each of the steps provided by law be carried out with care, from the death to the final delivery of the property to the heirs.

The usual procedures include, in particular:

• funeral arrangements;
• obtaining proof of death;
• the search for the will;
• opening and inventorying the safety deposit box;
• opening an account in a financial institution;
• probate of the will;
• analysing the testamentary dispositions;
• determining the heirs;
• designating the liquidator;
• preparing the inventory;
• claiming life insurance proceeds, annuities and benefits;
• tax formalities;
• liquidating the family patrimony and matrimonial rights;
• publishing notices;
• the heirs’ exercise of their option;
• administering the property of the succession;
• paying debts and particular legacies;
• transmitting the property;
• rendering an account;
• partitioning the property of the succession. All of these steps impose formal rules. Here are a few.

Searching for the will

In the absence of a will, the law determines who the heirs are and how the succession is divided. A will, on the other hand, lets a person express their wishes and organize the transfer of their property as they see fit. When the succession is settled, these wishes must be respected and carried out in accordance with the law.

Before beginning to settle a succession, it is essential to check whether the deceased left any testamentary dispositions. Searching their personal papers sometimes turns up a will or other writings expressing their last wishes.

Finding the will is an essential step in settling a succession. Searches of the personal effects of the deceased must be completed by the required checks with the appropriate registries, to make sure that the last known wishes are indeed the ones that will be carried out. The Registry of Testamentary Dispositions of the Chambre des notaires du Québec plays an important role here by making it easier to find a notarial will.

Consulting the Registry of Testamentary Dispositions is indispensable to verify whether a will exists and to make sure it is the most recent version of the wishes expressed by the deceased.

Designating the liquidator

The liquidator plays a central role in settling the succession. Responsible for carrying out the wishes of the deceased and administering the succession, the liquidator must complete several steps provided by law. The liquidator is generally named in the will. Otherwise, the heirs may designate one. The liquidator’s powers and obligations are defined by the Civil Code of Québec.

The person chosen as liquidator is generally a relative or friend whom the deceased trusted. Since settling a succession involves several legal, administrative and tax steps, the liquidator can count on the notary’s support to guide them at each step and help them properly fulfil their obligations.

Being the liquidator of a succession is an important responsibility. The person who accepts this role must complete several steps and comply with the obligations provided by law. A notary’s support makes it easier to understand these responsibilities, avoid certain difficulties and settle the succession in the interest of all the heirs.

Tax formalities

Settling a succession also involves important tax obligations. The liquidator must notably make sure that the tax returns of the deceased are filed and that the taxes owed are paid. Certain tax decisions may also be considered to optimize the position of the succession and its beneficiaries.

Before proceeding with the final distribution of the property, the liquidator must also obtain the required clearances from the tax authorities. This step is meant to protect both the liquidator and the heirs, and is an essential formality in settling the succession.

A notary’s support makes it easier to understand the legal, tax and administrative issues involved in settling a succession, and to avoid certain difficulties throughout the process.

Liquidating the family patrimony and the rights arising from the matrimonial or civil union regime

The heirs receive what remains of the patrimony of the deceased after the debts and taxes are paid and the particular legacies are delivered. To determine exactly which property makes up the succession, it is notably necessary to take into account the consequences of the marriage or civil union, the matrimonial regime, the family patrimony and any other rights that may exist at the time of death.

Death can have certain patrimonial consequences between spouses. Before determining which property will form part of the succession, it may notably be necessary to partition the family patrimony and liquidate the applicable matrimonial or civil union regime.

Depending on the situation, the surviving spouse may also be entitled to certain rights and remedies provided by law, notably a compensatory allowance, support or the preferential allocation of certain property.

Marriage or civil union can have a significant impact on the composition of the succession. Determining the rights of the surviving spouse, the partition of the family patrimony and, where applicable, the liquidation of the matrimonial or civil union regime requires a careful analysis of the legal and patrimonial situation of the deceased.

The legal and patrimonial consequences of death deserve a rigorous analysis. A notary’s support makes it possible to properly identify the rights of the surviving spouse and the heirs, and to facilitate the settlement of the succession.

The heirs’ option

No one is obliged to accept a succession. In certain situations, notably when the debts exceed the value of the property, it may be appropriate to renounce the succession. A complete assessment of the succession makes it possible to make an informed decision on accepting or renouncing it.

Accepting a succession does not automatically mean being personally liable for all the debts of the deceased. The law does, however, provide for certain situations in which an heir or a liquidator may be held liable, notably when the rules applicable to settling the succession are not followed. It is therefore important to fully understand the consequences of accepting or renouncing a succession before making a decision.

In certain circumstances, renouncing a succession may be the most appropriate solution. Before making a decision, it is important to assess the succession as a whole and to fully understand the legal consequences involved. The notary can guide you in this reflection and advise you on the steps to take.

When renouncing a succession is the appropriate solution, the renunciation must be recorded in a notarial act en minute.

The notarial will: a considerable asset

A will lets a person express their wishes and freely choose the people who will receive their property upon their death. With the advice of their notary, they can also provide for various measures to facilitate the settlement of their succession, reduce certain formalities and ensure a smooth transfer of their patrimony.

Executed en minute and kept securely in the notarial profession’s technological vault, the notarial will ensures the security, integrity and permanence of the testator’s last wishes.

The notary enters each notarial will in the Registry of Testamentary Dispositions of the Chambre des notaires du Québec, without disclosing its contents. This registration protects its confidentiality while making it easier to locate after death. Unlike other forms of will, the notarial will is not subject to a probate procedure, which generally speeds up the settlement of the succession.

Unlike the notarial will, the holograph will and the will made in the presence of witnesses must be probated by a notary or by the court before they can be carried out.