Wills and testament : How does it work?

Why is it important to create a will?

Writing your will is a key step in simplifying how your loved ones handle your estate and assets.

This document allows you to determine ahead of time how your assets will be divided. It also prevents legal conflicts among potential heirs during an already difficult period. The clearer the will, the easier it will be to execute properly.

If you die without having created your will, the assets will be divided “by default” according to the laws of your province or territory. That's why it’s important for anyone who owns property to prepare their will.

If you don’t have that many assets, you may not feel the need to write a will, but in reality, liquidating an estate without a will is much more complex and could actually cost your loved ones more.

When should you write your will?

A good rule of thumb is to start planning the transfer of your estate as soon as you own property or valuable assets. 

You should also take the time to update your will whenever your circumstances change. For example, if you have a child, go through a divorce, or when your assets increase or decrease in value.

Which format should you choose?

In Quebec, there are three types of wills:

• A notarial will
• A holographic will
• A will written in the presence of a witness 

Across the rest of Canada, holographic wills and wills written in the presence of a witness are more common. 

A notarial will 

This type of will is prepared and signed by a notary. It is then entered into the Register of Testamentary Dispositions of the Chambre des notaires du Québec.

It will not be subject to a verification procedure following a death and is more difficult to contest.

Notarial wills only exist in Quebec.

A holographic will 

This type of will must be written and signed by the testator (the person making the will for themselves) and does not require a witness but must be dated to be valid.

Before being executed, it will be subject to an audit, which adds time and additional cost to the liquidation of the estate.

A will written in the presence of a witness

This type of will can be written by yourself (either by hand or with a computer), or prepared by a third party and must be dated and signed by the testator. It requires two qualified adult witnesses to attest that the document is your will and then sign the document.

Like a holographic will, it will be subject to an audit which adds time and additional cost to the liquidation of the estate.

Who inherits what in the absence of a will?

In the absence of a will, provincial law will determine how the estate is divided. This is referred to as legal devolution, or ab intestate. 

The people who will then be called upon to inherit will be:

• A spouse who is married, in a civil union, or a parental union
• Immediate family members  

In Quebec, the estate will be divided according to the following criteria:

If the deceased was married, in a civil union, or a parental union and had children:

• 1/3 of the estate will go to the surviving spouse or partner.
• The remaining 2/3 will be shared among the children of the deceased.

If the deceased was married, in a civil union, or a parental union without children:

• 2/3 of the estate will be distributed to the surviving spouse.
• The remaining 1/3 will be given to the parents of the deceased.
• If the deceased has no surviving parents, this 1/3 will be shared between their siblings.
• If the deceased has no parents or siblings, the entire estate will go to the surviving spouse.

If the deceased was not married, in a civil union, or a parental union, but had children: 

• The entire estate will be divided among the children.

If the deceased was not married, in a civil union, or in a parental union with no children: 

• Half the estate will be distributed to the deceased’s parents.
• The other half will go to their siblings.
• If the deceased has no surviving parents, the entire estate will be divided between their siblings.
• If the deceased had no siblings, the entire estate would be distributed to their parents.

Here’s a summary of how a succession is divided in Quebec when there is no will:

Can you make a joint will?

In Quebec, joint wills are considered invalid. A will is considered a personal legal document that cannot be made with another person, even a family member or spouse.

It is possible to include a testamentary clause in a marriage contract or civil union agreement. In that case, the surviving spouse or partner could inherit the deceased’s assets.

Important: That type of clause is designed to benefit spouses and partners.

However, if both spouses pass away at the same time, the estate plan no longer applies. That particular situation will be treated as though no will had been made.

Across the rest of Canada, the rules governing joint wills can vary. Make sure to research the laws of your province or territory and ask a legal professional for more information.

How is an estate liquidated?

The first step involved in liquidating an estate is choosing an executor. This is followed by the division of family property and settling any matrimonial or civil union regimes. For partners in a parental union, the property will be divided. 

The will decides who the executor and heirs will be. The executor is the person identified as responsible for settling the estate and managing the deceased’s assets until they are distributed to all named heirs.

This person is also responsible for:

• Closing the deceased’s accounts
• Preparing and filing income tax returns
• Collecting any amounts owed to the estate
• Paying any debts the deceased may have had (related costs are covered by the estate’s assets)

If no executor is named in the will, or if no will was made, this responsibility will be handed to the heirs. They may then choose one person to act as executor. If there is only one heir, that person is automatically named as executor.

Many lawyers, accountants, and notaries offer estate settlement services. The fees related to these services vary depending on the complexity of the estate and the tasks involved.

Settling an estate can take a significant amount of time, sometimes more than a year, especially in order to follow provincial rules and tax legislation.

To finalize an estate, the deceased’s income tax return must be filed for the year of death, along with a separate tax return for the estate itself.

Once both returns have been submitted, the federal and provincial governments will issue clearance certificates—at the executor’s request—authorizing the distribution of the estate’s assets.

How does inheritance law vary between provinces?

Technically speaking, a will is valid anywhere in Canada, regardless of its form. In most cases, it will have to go through a legal verification process before it can be executed. However, there are certain rules in Quebec that don’t exist in other provinces.

In most Canadian provinces, you can prepare a holographic will, or one made in the presence of a witness.

If you own property in the United States, make sure to write your will with advice from a local American lawyer to include the property.

It’s extremely important that you carefully plan your estate if you own assets outside of your home province or Canada. Exercising a heavy dose of foresight and caution can simplify matters and spare your loved ones from unnecessary complications.

Estate planning is a key step to ensuring your wishes are respected after you die and can provide peace of mind to your loved ones. Don’t hesitate to reach out to one of our trust and estate planning experts.