Hello Dear Readers,
I hope that everyone had a great summer and that the beginning of the school year has gone well! On my end, things have been very busy – I am glad to announce that my husband and I recently welcomed a new addition to our family! Our little Baby Boy was welcomed to this world on August 10th of this year and we have been completely consumed by his wellbeing ever since!
Being a Notary working in the field of estate law – the birth of my son has reinforced my already strong belief in having an up to date will and mandate and especially the importance of being organized when planning one’s estate.
Allow me to share with you some of my personal reasons why!
- a) As a new mom, I want to make sure that my son would be taken care of, financially, in the event that anything should happen to my husband or I. As I have mentioned in my previous posts (click here to read my post on The Nuts and Bolts of Wills and Mandate), according to Quebec law, minor children (under the age of 18 years) are not legally considered able to administer property and are, therefore, unable to inherit directly from an estate.
Take for example that, in the event I pass away without a will, my estate would be divided between my husband and my children (1/3 to my husband and 2/3 to be split equally between my children). Also, in the event my children are all under the age of 18 years old and his/her/their share(s) in my estate is equal to or greater than 25,000$, there would be a need to establish what we call a “tutorship council” to oversee my husband’s administration of the share of my estate that my children would inherit. Furthermore, the Public Curator would also be called in to oversee my husband’s administration of the child(ren)’s share in my estate and there would be a need to get judicial authorization to sell and/or alienate (I mention “alienate” because taking a mortgage on a house is considered, in terms of the law, an “alienation”) any immovable properties (i.e. our house).
In short, even though my husband, being the father of our children, would be considered the children’s “tutor” (sole guardian and parent) who would be in charge of administering my children’s property until they reach the age of 18 years, any decision he makes that involves selling and/or alienating any or all of the immoveables in question would be subject to an authorization from the tutorship council as well as a judge. (Note: The public curator can also be called upon to oversee administration of minors or adults who are deemed legally incapable to administer their property).
As you can see, not planning in advance by having an up to date will and mandate can lead to a BIG MESS and it would surely make my family’s life very difficult at a very emotional time. Naturally, as a parent and as a wife, this would be the last thing I would want for my family!
- b) Foreseeing the naming of one or several liquidators (formerly known as the “Executor”): Again, I have explained in previous posts the importance of naming a (or several) liquidator(s) to your estate (here is the link again to the relevant blog post: The Nuts and Bolts of Wills and Mandates). When we add minor children into the mix, it becomes even more important to take the time in choosing your estate liquidator(s) and trustee(s), as the case may be. Here is why:
When a person passes away without a will (or without choosing a liquidator in their will) our Civil Code states that it is the “heirs”, together, who exercise the function of the Liquidator. The “heirs” are defined in our Civil Code as those who inherit in virtue of the law, which, in my scenario, would include my son and husband. My son, being an infant, will not be deemed capable to exercise the function of liquidator, which means that my husband, alone, would exercise this function, while at the same time being my son’s tutor and therefore representing his rights in and to my estate, thus resulting in a conflict of interest! What would have to happen?
My husband would need to petition the court in order to get an ad hoc tutor appointed to represent my son’s interests in my estate or to designate a liquidator (because my husband would be in a conflict of interest if he appointed a third party as liquidator alone, as he would be representing his rights in my estate and my son’s rights in my estate). We’re talking about a lot of costs to the estate, which translates into a loss of funds that could be going to my son and husband’s wellbeing.
Naturally, I would personally prefer that my family end up with as much of my estate as possible, instead of having my estate siphoned off in court fees (not to mention the emotional turmoil going to court might cause to my precious family).
- c) Foreseeing and deciding on my child’s or children’s guardian, in the event both parents die: I have saved this part for last, as it is a very touchy and emotional subject. In Quebec, if one parent dies, the other parent assumes full guardianship and responsibility of the child (the other parent becomes, in legal terms, the children’s “tutor”).
However, what happens in the event both parents die – who will take care of the children? Our laws allow us to choose, in our will (or in our mandates, in the event both parents are legally deemed incapable) to choose the person(s) who will assume guardianship of the children (be the children’s “tutor”). It is important that parents have this conversation and choose the same person(s) because, according to our law, it is the choice of the most recently deceased parent that will take precedence. Therefore, in the event my husband and I were to choose different people to be our son’s guardian, and I predecease my husband, my choice will never be taken into consideration in the event my husband passes away while our son is still a minor child.
Now, in the event that we both don’t have a will and we both predecease our son, while he is still a minor child, a family conflict could ensue and our son’s well-being could end up being caught up in the court system for a long time (in the event many family members petition for our son’s tutorship, a court decision would need to be made to appoint the tutor(s) who would be considered “in the best interest of the child” – this can be a very invasive procedure and has the potential to put my son in a very difficult position (I am imagining the scenario where my son is old enough to understand that his mother’s side of the family and his father’s side of the family are fighting over him, all while trying to deal with the passing of his parents).
While it is not certain that a family conflict would arise in this type of situation, I am aware of the fact that it is a possibility, and in the absence of an express choice by my husband and I in our wills (or mandates), this mere possibility is a situation that I would like to avoid at all costs.
In addition to making a choice together, I would also like to mention at this point that, in addition to making this choice, it would be a great idea for you and your spouse to let the person(s) you have chosen know about your decision in order to have him/her/them exercise the role of tutor to your children should anything happen. This would also allow you to let them know about your wishes for your children’s upbringing which translates to ensuring that your wishes for your child(ren) are well respected, as regards your children.
Finally, before ending this blog post, I want to mention a great tool that I recently came across and that I think is fantastic – the Nyzovie Heritage Kit (http://www.nyzovie.com/en/index.html). When planning your estate, it is just as important to get organized with your paperwork as it is to have a notarial will. We all know that by having a notarial will, the original is never lost and there is record of it at the Chambre des notaires du Québec (see previous blog posts for more information on the importance of having a notarial will: insert link here). BUT… What about actually finding the assets that form part of your estate?
In my practice, I often get estate files where, even though the deceased left a notarial Last Will and Testament, it is incredibly difficult to get an inventory of the estate’s assets and liabilities (which is incredibly important to do within the first 6 months following the death of a person, because in the event the estate is deficient, the heirs have a 6 month window to renounce to the Estate – see more on this subject on my previous blog post here: Estate Liquidation – What is it and whose job is it anyway?).
Also, it is not uncommon that an individual may have several life insurance policies, but without the right paperwork, family members might never become aware of the existence of such life insurance policies and, therefore, are never able to make the relevant claims!
For this reason, again, I believe that this Nyzovie Heritage Kit can really help your loved ones and heirs in ensuring all your intentions are properly executed. This kit is an extremely useful and user-friendly tool that allows each person to organize his or her estate. My husband and I have personally ordered and filled out this tool and I encourage you all to do the same! I can honestly say that I will council my clients to purchase this product (or any product of similar nature that might exist out there), in order to complete their estate plans. Trust me, a small investment at this time will save a lot of time, effort and costs to your Estate! As a side note, the kit also allows for an individual to provide their heirs with any online social networking passwords in order to effectively deactivate any account (just an added bonus as many individuals have not foreseen what they wish to happen with all their online accounts like Twitter, Facebook, LinkedIn, etc…!!!)
That’s all for now everyone – until next time!
Anna Kamateros, Notary, notaire
B.S.W., LL.B., D.D.N.
Disclaimer: This post does not constitute legal advice, nor does it establish a notary-client relationship. If you require any legal advice, please feel free to contact the Mtre. Anna Kamateros, Notary, directly.