Quebec – not a province like the rest.
Many of the differences in estate planning between Quebec and the rest of Canada stem from the fact that the Quebec legal system is based on French code law, while all the other provinces follow the English common law. Based upon the French civil code of the time, the Civil Code of Lower Canada was enacted in Quebec in 1866. Since 1994, the law has been referred to as the Civil Code of Quebec.
If one were to stand back and examine the Quebec process from a distance, it would appear remarkably familiar. In broad terms, it is very similar to practices elsewhere in Canada. But the Devil is in the details, and this is where the casual observer will need to begin to look more closely.
Here are some of the more common questions that are asked relating to estate planning for Quebec residents.
What is successoral planning ?
This is the process of planning for the transmission of one’s property at death. Despite the differences in terminology, the process will appear quite familiar. The succession of a person commences with their death, wherever they were last domiciled. All that a person owned, lesall they owed, is their patrimony. If there is a will, it will perform many of the familiar functions; it will designate the liquidator of the succession, the person who will carry out the testator’s wishes. It will direct that the patrimony of the deceased be passed to the heirs or legatees. It may designate a tutor to care for minor children. It will also revoke all prior wills, etc. As elsewhere in Canada, if there is no will, the state will make many of the decisions regarding the devolution of the deceased’s patrimony, care of minor children, etc.
And these decisions may not be in keeping with the deceased’s wishes. Notwithstanding minor differences of form, it is just as important to have a will in Quebec. Now let’s examine some of these terms in greater depth.
What types of wills are valid in Quebec ?
Holograph: This will is handwritten and signed by the testator. No mechanical process can be involved. This type of will must be probated.
Written in the presence of witnesses: This form of will, which can be handwritten or mechanically produced, can be prepared by either the testator or a third party (a lawyer, notary, a family member, etc.) and signed by the testator in front of two witnesses. The witnesses must also sign the will in the testator’s presence. Witnesses must be of legal age, but do not need to be aware of the content of the will. Witnesses and the testator must initial all pages to the will if it is prepared by a third party, and/or prepared mechanically. This type of will must also be probated.
Notarial will: The will is prepared by the notary, who signs it, as does the testator and one additional witness. Again, the witness does not need to be aware of the content of the will. Having this type of will eliminates the need for probate in Quebec, as the will is presumed authentic.
Who may act as a witness in Quebec ?
Unlike elsewhere in Canada, in Quebec, the testator’s spouse, legatees, heirs, or liquidator are not prohibited from acting as witnesses.
What are the contents of a Quebec will ?
The contents of a Quebec will are similar to those in the rest of Canada. It will contain the following main provisions:
- The testator’s identity, and the date the will was executed.
- The appointment of the liquidator of the succession, and the listing of their powers and obligations.
- The revocation of all former wills and codicils, and the statement that the present will is the testator’s last true will and testament.
- The legatees and heirs are identified, along with the bequests to be made. If necessary, tutor(s) will be assigned to care for minor children.
What is my patrimony ?
This is essentially the person’s estate. It is the sum total of all their economic rights and obligations. Thus, an interest in a house, a car, an investment portfolio, and amounts due to the person, all form part of their patrimony.
Debts also form part of it. Their patrimony begins when they are born, and they will have only one patrimony during their lifetime.
What is a succession ?
One’s succession commences with their death, and at the last place they lived. This is the process whereby one’s patrimony is transferred at death. Successoral planning is the planning process that surrounds and effects this transfer. While conceptually the process is very similar to that of the common law provinces, some aspects are unique to Quebec. Most significantly, there are differences in terminology.
What is a liquidator ?
This is the person who manages the succession of the patrimony, performing much the same duties as the executor in common law provinces. If there is no designation of a liquidator in a will, then this duty will fall on the heirs. They have the option of carrying out these duties themselves, or they may appoint a liquidator. Most of the same considerations apply to the selection of a liquidator as apply to the selection of an executor; their knowledge, availability, willingness to act, etc. A contingent selection should also be made, in case the first choice is unable to act.
Basically, any person of legal age, and possessing the legal capacity to exercise their rights, may act as liquidator in Quebec.
What are the duties of the liquidator ?
Whether designated in a will, or appointed by the heirs, the liquidator’s duties are very much the same as those of an executor.
Who are the heirs/legatees ?
These are the recipients of the patrimony of the deceased; its beneficiaries. These individuals can also be referred to as successors.
What is a tutor ?
Those who have the care of a minor child. Legally, this will be the parents while they are alive. But the last surviving parent has the right to appoint a tutor. If property is devolved upon a minor child, then the tutor(s) will manage the property in the child’s interest. If a trust is established, then the trustee will function as the tutor as regards the minor’s interest in that trust. Known as a custodian (and more commonly as a “guardian”) elsewhere in Canada.
What is the Probate process in Quebec and what are the Fees ?
In Quebec, the probate process applies only to holographic wills, and those made before witnesses. It takes the following course:
1) The existence of a will is publicized, and is recorded in the Superior Court of the province. The Court establishes that, on the surface, the will appears to be valid, and can issue certified true copies.
2) The liquidator must catalogue all of the deceased’s personal and moveable property, producing an inventory of the succession. This is a legal requirement, which the liquidator can avoid only with the approval of all the heirs and successors.
3) Having made the inventory, a notification is published identifying the deceased and advising interested parties (e.g.; someone with a claim against the succession) where they may review the list.
4) If the heirs have directed the liquidator not to create an inventory of the succession, then they become liable for the debts of the succession, even to the extent that the claims against the succession exceed its assets.
5) Should the probate process be prolonged, the liquidator has the duty to report to the heirs, at east once per year, concerning the management of the succession.
6) After the settlement of the debts of the succession, and the payment of specific bequests to legatees, the liquidator will prepare a final accounting of the succession, showing its remaining assets. The liquidator may even prepare a proposal for the distribution of those assets amongst the heirs.
7) Having completed all the above, and with the acceptance of the final report, the heirs will release the liquidator from their duties.
Probate fees in Quebec are just that — a fee. Unlike other provinces in Canada, which charge a “fee” (really a tax) based on the size of the probated estate, in Quebec there is a flat fee charged to process the succession.
It is interesting to note that a will probated in Quebec is not necessarily immune from challenges as to its validity. The probate process does not confer absolute validity, thus future challenges to a will’s validity are possible.
Are there any differences regarding the transfer of certain assets ?
There are a couple of estate issues which, while common in the rest of Canada, are handled differently in Quebec, and which deserve special mention here. A Quebecer can direct the transfer of their property, upon death, only through a will and/or a marriage contract. Residents of the other provinces and territories are able to pass along certain assets through preferred beneficiary designations (RRSPs, RRIFs, etc.), and a form of ownership known as “joint tenancy with right of survivorship”(JTRS). In Quebec, preferred beneficiary designations are only available for insurance contracts, and the common law concept behind JTRS is not available to Quebec residents.