We have now reached the second decade of the twenty first century. In the last few years, we have seen many changes to the traditional family structure. Common law couples, same-sex couples, blended families and other options are much more common. Although Quebec law dictates how certain assets such as the family home must be distributed upon death (and these rules cannot be modified by a will), most assets can be left according to your wishes, in a properly-drafted will.
Many of us believe that we don’t have enough property to justify preparing a will. In fact, this is usually untrue. Whether you’re a millionaire or a “thousandaire”, dying intestate (without a will) could lead to unintended consequences that may very well not be what you imagined or wanted for anyone, especially in your absence.
Distribution of Your Estate in the Absence of a Will
- If you have a common law spouse – which is quite common in Quebec – he or she will have no rights to inherit your property;
- If you are legally married and have children, your children will automatically be entitled to two thirds of your estate and your spouse will get the rest. If your children have not reached the age of majority, their share of the inheritance will be managed by a tutor, appointed by the Public Curator, who may not be the person you would have exactly wanted;
- If you are legally married without children and have surviving parents, your parents will be entitled to one third of your estate and your spouse will receive two thirds;
- If you are not married, have no children and your parents survive you, they will be entitled to half of your estate and your brothers and sisters the remaining half;
- If you are not married, have no children or siblings and your parents have predeceased you, your property may end up with distant relatives rather than close friends or charities.
Without going into more details, there are other permutations/combinations that could lead to unintended results.
Drafting a Will - More Than Just Distributing Your Estate
- If you have a spouse to whom you want to leave your RRSP, RRIF or TFSA, dying intestate could lead to immediate income tax consequences that are easily avoided;
- Your will can name a guardian for minor children if there is no surviving parent. Not doing so will put the decision in the hands of the Public Curator, who will appoint a tutor for your children. This may not be the person you would have chosen;
- You can name your own trusted liquidators who will be responsible for safeguarding your property and distributing it according to your wishes. Otherwise, it will be your heirs acting together, possibly a recipe for disaster;
- If you have a spouse and want to ensure he or she is well provided for in his or her lifetime but also make sure your children get the bulk of the property after his or her death, a properly drafted will provides the mechanism to do so;
- If you are in a second marriage and both of you have children from an earlier marriage, a properly drafted will can ensure your children are your inheritors;
- Your will can provide your liquidators with more discretion than is provided for by the Civil Code of Quebec. This may make it easier to make the best choices for your beneficiaries. Your will can also eliminate some unnecessary formalities required by the Civil code.
As a resident of Quebec, once you decide to prepare a will, it would normally be drafted by a notary as opposed to an attorney since a notarial will does not have to be probated in front of a judge. This will make the transfer of your property to your heirs much easier.
If you have property outside of Quebec, for example a vacation condo, it may make sense to prepare a separate will to deal with that asset according to the laws of the other jurisdiction. This will also make the transfer of that asset to your heirs much easier.
Once you have a will, it should be reviewed every few years to make sure it still reflects your wishes and considers any changes to the civil law or income tax law.