Picture someone going to the bank with their deceased father’s will in hand. They want to access his account to withdraw funds, but they’re denied access. You may wonder why? Because before starting the settlement of the estate, it is mandatory to verify if the deceased left a will, and who the rightful heirs of these funds are. A will research is mandatory, even if you believe the deceased left no will. Here’s what a will research entails, and what to expect if a will is or isn’t found.
What is a will research?
A research must be performed to determine whether the deceased left a registered will. It is carried out in two places:
A will can be prepared by a notary, or with the help of a lawyer. In the latter case, it shall be signed in the presence of two witnesses, rather than just one, and probated after death. Only notaries are authorized to draft authentic wills. They must keep the original copy in a vault and, twice a month, must register all new wills they have received at the Registry of the Chambre des Notaires du Québec. This is not the case, however, for wills prepared with a lawyer. Only certain ones will be registered by the lawyer at the Register of the Barreau du Québec, and these are much rarer. Moreover, since such wills are not considered authentic deeds by the Civil Code of Quebec, they must be probated after the death of the testator.
Hence, the importance of verifying both registries of wills. This process generally takes from three to six working days, depending on whether you choose accelerated file processing (a bit more expensive) or regular.
Note that even if you find a copy of the deceased’s notarial will at home, you cannot use it until a will research has been performed. Why? Because the document found may not be the most recent one. Since a person can change their will at any time without notifying their heirs, you need to prove that you have the latest version.
Will researches are generally entrusted to notaries since they have direct access to the registers. You can choose any notary—you’re not obliged to deal with the one who drew up the will. It is strongly recommended that you take this opportunity to schedule a legal consultation, so that your notary can guide you through the next steps in settling the estate.
What documents must be provided?
Both the Barreau du Québec and the Chambre des notaires du Québec require certain information to proceed with a will research. If a notary is performing the search on your behalf, you must provide them with the following documents:
- Original Act of Death or Death Certificate, issued by the Directeur de l’état civil (photocopies are not accepted, but the original will be returned to you). While waiting to receive the original, you can begin the process with the Attestation of Death issued by the funeral home.
- Social insurance number of the deceased
- Marital status of the deceased (marriage or divorce certificate)
- Last address of residence of deceased
- Last employment of the deceased (position held)
Scenario no 1: A will is found
If the research results show that the deceased left a notarial will, you must contact the notary in question to obtain a copy. Notaries must keep their original documents in a fireproof vault forever. If the notary in question has retired or died, all their documents (known as the “greffe”) will have been transferred to another notary or to the Superior Court. Once you’ve retrieved the will from the notary, the document is considered an authentic act, which is difficult to contest in court.
Did you know?
All notarial documents dating back to 1880 can normally be found in the basement of the Superior Court of Québec. A real gold mine!
If you’re dealing with a will prepared with a lawyer in the presence of witnesses, you’ll need to retrieve the original from their office. Steps must then be taken to probate the will.
Once this is done, you can proceed with settling the estate in accordance with the terms of the will—alone or with the help of a notary.
Scenario no 2: No will is found
If a will is not found in the registers, it simply means that no document has been registered. However, the deceased may have written one by hand (also known as a holographic will) or in the presence of witnesses. These types of wills must be probated by a notary or the Superior Court before being used. It is strongly recommended to go through all the deceased’s documents to verify the existence of such a will.
If none is found, the estate will have to be settled in accordance with the provisions of the Civil Code of Québec. These provisions are complex. For example:
- If the person was married and had children, a portion of their assets will go to the spouse and the other portion to the children
- If the person was married with no children, the assets are distributed among their spouse, parents, brothers, sisters.
- If the deceased had a common-law partner, that person has no rights of inheritance according to Quebec’s laws.
Furthermore, the heirs must prove their status by means of a “declaration of heredity.” This document is mandatory in the absence of a will and must be notarized. The declaration identifies the names of the heirs and stipulates how the assets will be distributed. The family may also choose to appoint a liquidator (otherwise known as an executor) to take the next steps in settling the estate. If not, all decisions must be approved by all the heirs, which complicates the process further. Add to that the possibility of family arguments and disputes.
Finally, in the absence of a will, banks also require a “declaration of heredity,” in addition to a will research, before authorizing any action on the deceased’s accounts.
In short, it’s best not to leave your family without a notarial will! The legal procedures resulting from the absence of a will will be much more expensive for your heirs than the cost of having a will drawn up with a notary during your lifetime.
The will research: essential in order to proceed
Contact us for assistance in the complex process of settling an estate. We will answer your questions and advise you, or handle some of the steps for you, if you wish.
The information in this article is for information purposes only and does not represent an opinion or legal advice. See your notary for information specific to your situation.