The will: a matter of common sense

In addition, your successors will not necessarily be the ones to whom you intended to bequeath your assets. Indeed, the Civil Code clearly establishes the order in which the inheritance should be distributed, according to whether you are married or common-law partner, whether you have children, whether you have siblings and whether your parents are still alive. Note that if you have not written a will and if you and your significant other are common-law partners, your spouse will not get Nothing, regardless of how many years you were together.

Types of wills

There are three forms of wills: a holographic will, a will countersigned by two witnesses, and a notarial will.

A holographic will is a basic solution. It should be entirely written and signed by yourself — so not using a computer or typewriter. It costs nothing, can be drawn up quickly, and is a completely legal document; however, it will have to be authenticated by the court or by a notary after death, which delays the settlement of the estate and incurs costs for the heirs.

You can also write your will by hand or on the computer or on a typewriter, state your last wishes, then have it signed by two major witnesses who have no interest in the case. It has the same legal value as a holographic will.

A notarial will is authentic. A copy is filed with the notary, and the Chambre des notaires du Québec is obligatorily notified of the name of the notary who made your will. Thus, if your heirs present proof of your death to the Chamber, it will be easier for them to find your will.

By comparison, a holographic or witness will, if not kept in a secure place, is more likely to be “lost,” destroyed, or stolen. In addition, a notarial will is practically unquestionable, unlike a holographic will. However, since the entry into force of Law 443 in 1999, the notary now has the power to verify the authenticity of a holographic will or countersigned by two witnesses. If there is no objection, he can make this will enforceable. Previously, only the court had this power.

A trust for survivors

Drawing up your will also gives you the opportunity to create a trust for your heirs. In particular, this makes it possible to avoid interference by the Public Curator of Quebec in your family affairs. The creation of a trust allows you to manage, post-mortem in a way, the inheritance shares of your loved ones (spouse and children) and to ensure their financial future, at all levels. In addition, writing your will gives you the opportunity to designate the legal guardian (s) of your minor children, in the event of your death and that of the other parent.

A liquidator of succession

To avoid any misunderstanding or dissension within the family, it is recommended to designate a liquidator in your will. This person will then be vested with all wealth management powers; she will decide whether it is better to sell the assets or keep them, and will distribute the assets between the heirs. How many horror stories have we heard about families torn apart by greed and greed after an inheritance!

Mandate in case of incapacity

As long as you dive into the legal field, why not establish a mandate in case of incapacity? We prefer not to think about the possibility that we will no longer be able to manage our assets properly, either because of illness or because of an accident. However, it may be useful to plan, in case... The incapacity warrant allows you to designate one or two people to manage your assets and ensure your well-being should you be declared unable to make informed decisions on this subject, supported by medical and psychosocial evaluations.

You can appoint one or two representatives. If you name two, one may be responsible for ensuring your well-being (e.g., health care), the other for managing your assets (e.g., taxes, mortgages, bank accounts). Your agents are people you trust, who know you well and know how you manage your business.

When establishing a mandate in case of incapacity, you must specify the date the mandate was written, indicate your full name and that of the agent (s), and clearly define their respective responsibilities. The warrant must include a statement dated and signed by two witnesses who have no interest in the case.

Again, it is preferable to draw up your mandate in front of a notary, as this simplifies the procedure when the time comes. If the mandate is not notarized, your family members will have to have it approved by a clerk or a Superior Court judge, which results in additional delays and costs. In this case, they must have in hand a copy of the medical and psychosocial assessment attesting to your incapacity.

A service to be rendered to your loved ones

In summary, it is recommended that everyone, sick or not, at risk or not, write a will, in one form or another among those mentioned here. The important thing is to write one, period. This measure will be an invaluable service to your loved ones at an undoubtedly difficult time and will allow you to “leave” with peace of mind, no matter what happens.

by Geneviève Thibault-Gosselin

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