Hello dear readers,

While I am sure none of you have been waiting in anticipation for the second instalment of my series on Wills, Mandates and the Right to Representation, I am still excited to let you all know about the points on which I touched on during my aforesaid presentation for the CSSS Cavendish Users Committee.

This final instalment will focus on the Last Will and Testament and certain things I think most people should be made aware of. So, without further a due, here we go:

1. Beware of the do-it-yourself will kits : I realize that these do-it-yourself kits have become more and more popular over the past few years. Why not – they are affordable and easy to use, so what disadvantage might there be in doing this type of will? Yes, it is true that such kits are very affordable and easy to use, but they are not usually effective in translating your intentions. They may not provide for certain contingencies, they don’t often take into account the repercussions of leaving property to minor children (who, by law, are unable to administer property until the age of 18), and the list goes on and on and on… Furthermore, these types of wills are subject to probate, which is a judicial procedure that must be done in order to allow the courts to emit certified copies of the will (a notary can also do this procedure, by the way). This is a fairly costly procedure that will be borne by your estate. It can also cost a lot in terms of time. By being required to probate the will, any time and money saved by purchasing these do-it-yourself kits will be lost when it comes time for your heirs and/or liquidator(s) to administer your estate. So while I realize that it might be tempting, I am not a proponent of these kits.

2. The benefits of a notarial will: While I realize that I may be biased, it is my honest opinion that a notarial will provides the most certainty and peace of mind. Not only will you be consulting with a legal professional trained in the drafting of legal documents, you will ensure that the original is never lost or destroyed, as it is kept in the notary’s vault (the notary will emit certified copies for your records). Furthermore, notaries are required to register every will and mandate they execute at a central registry at the Chambre des notaires. For those of you who have had to deal with the estate of a loved one in the past, you will know that Will Search Certificates are always required and these will search certificates show the most recent notarial will signed by a deceased person, the notary who executed the said will and the notary’s coordinates. Finally and most importantly, notarial wills are not subject to probate, which means that they come into effect immediately, without the requirement of a judicial proceeding. Thus saving time and costs to your estate.

3. What happens when I don’t have a will: By law, when a person passes away without having left a will, 2/3 of his or her estate gets divided equally amongst the deceased’s children and 1/3 of the estate goes to the deceased’s married spouse (the distinction is important one because, according to the Civil Code of Quebec, common law partners may never inherit, unless their partner leaves a will in their favour). In the event there is no spouse, the entire estate gets divided equally between the children.

In the event a person passes away without leaving a will and has no children, then his or her married spouse would be entitled to 2/3 of the estate and 1/3 of the estate would be divided between the deceased person’s parents (and if the deceased’s person’s parents had predeceased him or her, then this 1/3 would get divided amongts the deceased’s siblings).

Moving forward, if a person were to die without a will and was never married nor had any children, 1/2 of the estate would be divided between the parents and the other half would be divided between the siblings (in the event the parents had predeceased him or her, the entire estate would then be divided amongst the deceased’s siblings).

Now please take into account that I am giving the broad rules pertaining to successions – they can get a lot more complicated and difficult to deal with for the heirs of such an estate. All the more reason to consult with a legal professional so that you can control what will happen to your estate and not leave anything up to chance.

4. Does the government automatically seize part of every estate? In short, no. The government can only become heir to an estate in certain circumstances. The first of such circumstances being the situation where there are no known successors who are found within the first six months after a person passes away. These are what we call unclaimed successions and the government will usually publish notices of such unclaimed successions in the newspapers, in the event any heirs can be identified. The second set of circumstances is in the event all the known heirs renounce to an estate within the first 6 months after a person passes away (by law, heirs have a 6 month window to renounce to the estate) – the government will then take over the estate (this is usually the case when the succession is insolvent, meaning that the assets are not sufficient to pay the existing debts). Other than these situations, your income taxes will need to be done for the year of your death – in the event anything is owed to the government, payment would need to be made from the estate.

Now there are many more points that I would love to write about and that are not addressed in this blog post. Hence the reason that I urge you all to consult a legal professional about drafting a will. Don’t leave anything to chance – the whole point of my presentations and this blog post is to empower you all to take control and have your intentions be written clearly by a person who has received extensive training in the matter.

Have a great weekend everyone!

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