Why make a will?
What is the difference between a notarial will and a holograph will? Must a will be probated by a notary or by the court before it takes effect? Is it true that the notarial will avoids this step because it is an authentic act and can be carried out without a probate procedure?
My husband and I signed our wills before a notary at the same meeting. Can he later change his will without telling me? Is the notary required to obtain my consent before receiving new testamentary dispositions from him?
My family situation has changed. I have children from a first union and I now live in a de facto union with my new spouse. We bought a residence in undivided co-ownership. Will I automatically inherit his share of the property when he dies? Is it true that de facto spouses have no inheritance rights under the Civil Code of Québec?
If my de facto spouse dies, who will inherit his undivided half of our residence? Is the answer different depending on whether or not he left a will?
Which form of will to choose?
The Civil Code of Québec recognizes three forms of will: the notarial will, the holograph will and the will made in the presence of witnesses.
The notarial will is executed before a notary, who verifies the testator’s capacity and the validity of their consent.
The holograph will must be written entirely by hand and signed by the testator. No witness is required.
The will made in the presence of witnesses is signed by the testator in the presence of two witnesses who attest to the signature.
The will made in the presence of witnesses does not have to be written entirely by the testator. It can be prepared by a technological process or by another person. The testator must, however, sign it and declare, in the presence of two witnesses, that it is indeed their will. The witnesses must also sign the document in accordance with the requirements of the law.
If you choose to make a notarial will, it will take effect upon your death without any probate procedure being necessary. On the other hand, 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.
The notarial will is not subject to a probate procedure, because the notary, as a public officer, gives it an authentic character. This authenticity allows it to take effect upon death, without the need for validation by the court or by a notary.
A few good reasons to choose the notarial will
A will is one of the most important legal documents a person signs in their lifetime. It serves as the basis for settling the succession and passing on the patrimony. It is therefore essential that it be drafted precisely, that it faithfully reflect the testator’s wishes and that it leave no room for ambiguity.
Thanks to their knowledge of estate planning and the drafting of acts, the notary guides the testator in their reflection and makes sure their wishes are expressed clearly, so as to facilitate their execution and reduce the risk of disputes or difficulties of interpretation.
The choice of words is particularly important in matters of wills. The notary makes sure your wishes are expressed clearly, precisely and in accordance with the requirements of the law. The notary’s advice also makes it possible to address important questions that might otherwise be overlooked, thus making it easier for your loved ones to settle your succession.
Moreover, the notarial will benefits from preservation measures that ensure its security, integrity and permanence. Executed en minute and kept securely in the notarial profession’s technological vault, it is protected against loss, alteration and destruction.
The notary enters the notarial will in the Registry of Testamentary Dispositions of the Chambre des notaires du Québec. This registration never reveals the contents of the will; it only makes it possible to trace its existence. The confidentiality of the testator’s wishes is thus preserved, while making it easier to find the will at the time of death.
The registry of wills, an exceptional system
For more than sixty years, Québec notaries have helped protect the last wishes of citizens. To make wills easier to locate while preserving their confidentiality, the Chambre des notaires du Québec set up the Registry of Testamentary Dispositions as early as 1961. Today, this registry holds several million entries and is an essential tool in settling successions.
A versatile system
Since 1978, holograph wills and wills made in the presence of witnesses can also be entered in the Registry of Testamentary Dispositions of the Chambre des notaires du Québec. To do so, the will must be entrusted to a notary, who will keep it among their minutes and enter it in the registry.
This registration helps make the will easier to find after death, while ensuring the confidentiality of its contents.
An advantageous system
Designed and created to guarantee respect for your last wishes, the Registry offers many advantages:
- It maintains the confidentiality of the will, since only its existence is registered;
- It makes it possible to trace your last will after your death;
- It eliminates the risk that your will is ignored or traced too late during the liquidation of a succession;
- It prevents a holograph will, or a will made in the presence of witnesses, from being destroyed accidentally or maliciously by people disappointed with its provisions. Thanks to these advantages, the Registry greatly helps in finding your testamentary dispositions and thus speeds up the settlement of your succession.
An easily accessible system
By choosing the notarial will, you benefit at once from the notary’s advice, from an authentic act exempt from any probate procedure and from its registration in the Registry of Testamentary Dispositions of the Chambre des notaires du Québec.
The holograph will and the will made in the presence of witnesses can also be entrusted to a notary for safekeeping and registration. This precaution makes them easier to locate after death and helps ensure their preservation.
To check whether a will exists following a death, you can contact a notary or carry out the required searches with the Registry of Testamentary Dispositions of the Chambre des notaires du Québec. Proof of death will then have to be provided to allow the necessary checks.
The will, written by Me Sevgi Kelci:
Some people often wait until they are quite advanced in age before thinking about making their will.
This habit can cause problems for the heirs of the deceased, who must then bear the harmful consequences of an intestate (without a will) or legal succession.
Any capable adult can make a will. Yet, without adequate planning, settling a succession can mean additional steps, delays and costs for loved ones. A will lets you express your wishes clearly, choose your heirs and make the succession easier to settle.
The following lines present some of the main reasons for preparing a will.
A will lets a person freely choose who will inherit their property and determine how it will be passed on. In the absence of a will, the succession devolves according to the rules of the Civil Code of Québec, which designates the heirs and sets their respective shares of the succession.
A will thus makes it possible to ensure that the transfer of the patrimony truly reflects the wishes of the deceased and takes into account their family, personal and financial situation.
A will also makes it possible to designate the person who will be responsible for settling the succession. This person, called the liquidator, will be responsible for administering the succession and carrying out the wishes of the deceased.
In most cases, the will identifies the person to whom the testator wishes to entrust this responsibility. In the absence of a will, or when the will makes no designation, the heirs will have to choose the liquidator themselves in accordance with the rules provided by law.
A will thus makes it possible to entrust this role to a trusted person chosen in advance, whose skills, availability or personal qualities match the needs of the succession.
Third, a will makes it possible to designate the person who will look after your minor children if you die before they reach the age of majority. It is also possible to name replacements to cover different eventualities.
In the absence of a will, the mechanisms provided by law will have to be put in place to ensure the protection of the minor. These steps can involve additional formalities and delays.
A will thus lets you express your wishes in advance and entrust this responsibility to a trusted person chosen for their judgment, their availability and their ability to look after your child’s interests.
In short, a will lets you keep control over the transfer of your patrimony after your death. It lets you freely choose your heirs, determine how your property will be divided and designate the person who will be responsible for settling the succession.
Adequate estate planning also helps simplify the steps that will follow death, reduce certain formalities and make the work easier for the loved ones called upon to settle the succession.
Finally, a will makes it possible to designate the person who will care for your minor children in the event of your death. It also gives you the option of naming replacements to ensure their continued protection if the person initially designated cannot or does not wish to take on this responsibility.
