Did you know that more than half of Quebecers (54%)* do not have a will? Yet the consequences of not preparing a will can be serious for your loved ones. Read on to learn about some of the repercussions and advantages of drawing up this important document.
What is a notarized will?
A will is a way of planning who will inherit from you on your death and what they will receive. It enables you to determine who will be your liquidator (also known as an executor), who will take care of your minor children and manage their assets if you die while they are still minors. When a will is notarized, in other words, prepared by a notary, the law considers it as an authentic act, which makes it difficult to contest before the Courts.
What happens if you die without leaving a will?
You may be surprised to learn the possible impacts of not having a will. Here are a few examples:
- Without express and clear provisions in their will, common-law partners do not inherit from each other, no matter how long they’ve been together. Your spouse could potentially end up co-owning the house with their in-laws, which could lead to disputes! In addition, your minor children could also become co-owners of your home with your spouse, which would require an arduous court process to be able to sell or mortgage the property.
- A non-notarial will can be contested, which would mean additional delays and legal costs.
- Unless there are stated restrictions, your children could squander their inheritance as soon as they come of age.
- If you fail to name a legal guardian in your will and your spouse dies or becomes incapacitated, your minor children could potentially find themselves under the care of the Directeur de la protection de la jeunesse .
- Your heirs will have to pay an estate tax, which could be excessive.
- All heirs will be joint liquidators and will have to assume responsibility for the estate together; appointing a sole liquidator requires a procedure before a notary, which implicates additional fees.
In short, if you don’t have a will, your heirs will need to work through the various legal requirements and overcome a number of obstacles to settle your estate.
ADVANTAGES OF A NOTARIAL WILL
When you prepare your will with a notary, you benefit from their legal advice. Also, your will is deemed authentic and will be easier to trace as it must be registered by your notary in the Registry of Testamentary Dispositions of the Chambre des notaires du Québec.
A notarial will offers numerous real advantages. It allows you:
- provide for your loved ones, children, and grandchildren.
- appoint a legal guardian for your minor children;
- spare your loved ones from a complicated and potentially conflict-ridden situation, as well as additional costs;
- appoint someone you trust as a liquidator to settle your estate;
- specify who will inherit your home, assets and personal belongings (jewelry, vehicles, money, etc.);
- ensure sound administration of the assets bequeathed to your children by specifying the procedures for distributing each heir’s share of the estate, including the age at which children can access it;
- leave instructions for your funerals or celebration of life.
IS IT IMPERATIVE TO HAVE A NOTARIZED WILL?
In addition to notarial wills, there are two other types of wills: those written by hand (holographic) and those prepared in front of witnesses. Wills written by hand or purchased online at a nominal cost must undergo a verification procedure before they can be legally enforced. This process, known as “probate,” costs roughly $2,000 to $4,000 and takes about six months. Only notarial wills do not require probate.
What if I don’t have much to leave or don’t have any heirs?
You don’t have to be wealthy to do a will. Even if you don’t own a real-estate property or vehicle, you still have personal belongings. You may have some money set aside in the bank, in investments or in a pension fund. Moreover, a will expresses your wishes regarding your funerals and other arrangements to be made upon your death. If you don’t have children or a common-law spouse to bequeath your assets to, the law stipulates that the estate will go to your parents, brothers and sisters, or your nieces and nephews, as appropriate. You may decide to designate other heirs in your will, such as friends, or to leave your assets to a charity.
Our best tip? Ask for advice!
A notary is the best-qualified professional to answer questions about preparing a will. Contact our team with any concerns or, if you’re ready, to have your will duly drawn up. Your loved ones will thank you for it!
*Based on a survey conducted by Desjardins Wealth Management.
The information provided in this article is for general information purposes only and does not represent legal opinion or advice. Consult your notary to obtain information adapted to your situation.