29 Jun Consequences of not Having a Will
A Will is a legal expression of a person’s wishes regarding the distribution of his/her property after death.
A person who dies without a Will is often referred to as “intestate” and the succession is referred to as an “intestacy” or “legal succession”. In the absence of a Will:
- The property will be distributed on the death according to the legal devolution provided under the Civil Code of Quebec, rather than according to the directions based on the specific wishes.
- The person will have no control over who will liquidate and administer his/her succession. The office of liquidator devolves of right to your heirs unless otherwise provided by a testamentary disposition. The heirs may, by majority vote, designate the liquidator and provide the mode of his/her replacement. The court may designate or replace a liquidator failing agreement among the heirs or if it is impossible to appoint or replace the liquidator. Not appointing liquidators that the person has selected in a Will could cause conflict within his/her family as well as unnecessary costs and delays.
- The person loses the opportunity to establish tax savings and other valuable benefits would not be available. This could lead to unfavourable consequences for the estate or for the beneficiaries.
The tax savings potential of a qualifying spousal trust would not be available, which could result in additional taxes payable by the estate or by the spouse. The tax savings potential with respect to the share of a child in the estate would not be available; and complex and burdensome administrative rules may apply where the share of a minor beneficiary is given outright to the minor beneficiary rather than in trust or prolonged administration for his or her benefit. Furthermore, once the beneficiaries become adults, the entire inheritance would have to be given to them, regardless of the amount or the beneficiary’s ability to properly manage it at the time. With proper planning and the preparation of a Will, these adverse consequences could be avoided or minimized.
Protection of Beneficiaries’ Marital or Family Property
Including a provision in a Will stating that all legacies or trust distributions shall be and remain the private property of the legatees and/or beneficiaries and shall not form part of any community of property or partnership of acquests, nor be subject to the matrimonial rights of the spouses of such legatees or beneficiaries may help protect these assets from the spouse in case of matrimonial breakdown.
Wills could also provide that any benefit is made as alimentary provision for the legatees and/or beneficiaries, and shall be unseizable for payment of their debts, unless they renounce this right of unseizability. The intent of this is to enhance the protection of such assets from a beneficiary’s general creditors.
A Notarial Will is made before a notary, en minute, in the presence of a witness or, in certain cases, two witnesses. The date and place of the making of the Will shall be noted on the Will.
A Notarial Will is read by the notary to the Testator. Once the reading is done, the Testator shall declare in the presence of the witness that the act read contains the expression of his or her last wishes. After being read, the Will is signed by the Testator, the witness or witnesses and the notary, in each other’s presence.
The original of the Notarial Will is kept by the notary, so that it can’t be lost, destroyed or stolen. The Will is also registered with the Quebec registry for Wills and Mandates. It is therefore easy to find it after death following a Will search procedure.
A Notarial Will is an authentic document, which need not be probated. Certified copies of the Notarial Will issued by the notary may be used by the liquidator as official documents to liquidate the succession.
Given the broad range of legal areas and issues that must be considered in planning and preparing a Will, some of which are outlined in this text, there is really no substitute for the professional legal advice of a notary whose practice is focused on Will, estate and tax planning.
We recommend that a person should review his/her Will every three to five years or more frequently if circumstances change.
If you don’t have a Will, contact a notary.