A house or condo purchase is a major investment that must be well protected. It’s even more important to protect our loves ones in the event of our death.
Indeed, not having a will can lead to unexpected and sometimes difficult to manage consequences for the property owner’s family.
1. What Happens Without a Will
In Québec, if a person dies without a will, their assets are distributed according to the rules of the Civil Code, which stipulates the following:
- If you’re married or in a civil union, your spouse might not inherit your property as a whole.
- If you’re in a common law union, your partner can’t inherit because the law doesn’t recognize common law partners as heirs.
- If you’re neither married nor in a civil union AND you have children, they will inherit first, which could force your partner to sell the house to pay them their share. If the children are minors, a guardianship will need to be set up given their share’s significant economic value.
- If you have no spouse or children, the property will pass to your parents, siblings, or nieces and nephews, according to the order of succession established by law.
In the absence of a will, your loved ones may face a lengthy and complicated estate management process.
2. Why Property Owners Must Have a Will
A will allows you to:
- Name your heirs: You decide who will inherit your property and other assets upon your death, thus avoiding legal complications.
- Protect your common law partner: As mentioned above, in the absence of a will, a common law partner could lose the right to remain in the home.
- Facilitate estate management: A well-drafted will simplifies the process and speeds up the transfer of assets.
- Prevent family conflict: Clearly setting out how your assets will be divided avoids disputes between heirs.
- Optimize taxation: Certain estate planning strategies can minimize the amount of inheritance tax your heirs may have to pay.
3. The Types of Wills Recognized in Québec
Québec law recognizes three types of wills.
The holograph will, which is handwritten by the testator and then signed. It’s valid but must be probated by a court after their death.
A person can also draw up a will made before witnesses. This document is written by the testator and signed in the presence of two witnesses. It must likewise be probated by the court following the testator’s death.
Then comes the notarized will, which is drawn up before a notary. This is the most recommended option, as you will benefit from the advice of a legal professional. This type of will is automatically considered valid and probate isn’t required.
To find a notary in your area who specializes in preparing this type of document
Visit the website of the Chambre des notaires du Québec (Quebec Chamber of Notaries) and search by selecting the practice area: Will drafting.
Find a notary4. What Does a Will Contain?
- The testator’s personal details: Their full name and full contact information.
- The designated heirs: The estate’s beneficiaries and how assets are to be distributed between them.
- The appointed executor: The person responsible for administering the estate.
- Specific bequests: Certain assets that the testator wishes to bequeath to a particular person.
- Provisions concerning minor children: The appointment of a guardian if necessary.
- Any other special clauses: wishes regarding the funeral or the management of specific assets, for example.
Remember to update your will after a major life event (marriage, birth, separation, new property purchase, etc.).
5. Other Important Documents to Have
In addition to a will, homeowners should have a protection mandate (this document allows you to designate a person to manage your assets in the event of incapacity). They should equally purchase life and critical illness insurance, which is useful for covering mortgage debts and safeguarding your loved ones’ financial stability.
Consult our article on this topic: Mortgage Insurance: Is It a Good Option?
In real estate, an ounce of prevention is worth a pound of cure!
