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Estate Settlements

Your notary: An Artisan and a Master

Since the coming into force of the new Quebec Civil Code, the settlement of a succession (or estate) has become, more than ever, a delicate and complex matter.The law provides for the transmission of the rights and property of a deceased person to his heirs. In the settlement of an estate, the intervention of a notary ensures that the numerous obligatory procedures are properly followed and the thorny legal questions correctly resolved. Failure to seek his advice risks causing undue delay in the process of the liquidation of the deceased's affairs and compromising the fundamental rights of the heirs or the deceased's family. Your notary will be called upon to draw up the appropriate deeds and will collaborate with other professionals whom will direct and supervise. He is the principal artisan and master of the whole operation.

How is an Estate Settled ?

To be effective and beyond dispute, the settlement of an estate requires that each procedure be followed in accordance with the law from the time of death until the final delivery of the property to the heirs. The normal procedures include in particular: seeing to the funeral arrangements; making an inventory of the safety-deposit box; obtaining proof of death; searching for the will; probate of the will; analysis of the testamentary provisions; determination of the heirs; appointing the liquidator; claiming the life insurance benefits; claiming the pensions and allowances; liquidation of the matrimonial rights; determination of the deceased's patrimony; making the inventory; publishing the notices; exercising the heirs' option; administration of the estate's property; paying the debts; preparation of the income tax returns; issuing the distribution certificates; transmission of the property; preparation of the liquidator's accounts; partition of the estate. Each and every one of these procedures is subject to obligatory rules. Here are some examples.

Searching for the Will ?

In the absence of a will, the law will determine who are the heirs. However, the testator's wishes will set aside the application of the rules of the Civil Code. Only the testator's last wishes must be carried out.

Accordingly, the first thing to do, before anything else, is to meticulously search through the deceased's personal belongings to find this precise instructions.

The search often leads to the discovery of a private writing or a copy of a more elaborate notarial will. But this is not enough. All possible steps must be taken to ascertain that the liquidator is in possession of the testator's last instructions. In order to do so, the Chambre des notaires du Quebec created a Register in 1961 now containing more than 3,soo,000 entries of testamentary provisions. Therefore, it is essential to consult it to ascertain the existence of a possible will.

Intervention of the Liquidator

The Quebec Civil Code establishes a new regime of administration and liquidation of an estate. From now on, it is the liquidator who is in charge of the complete execution of the deceased's wishes. The identity of the person chosen is usually disclosed in the will. The heirs will choose someone only if the deceased died without a will or if it is not provided for in his will. The liquidator's powers and duties are specified in the law. Nevertheless, the testator may modify them in his will in order to attain his own objectives or simply to ensure greater efficiency. The liquidator is responsible for the accomplishment of the essential formalities. Among his principal duties, he must pay the debts, draw up the required inventory and render an account of the quality of his administration.

The appointed person in whom the testator has confidence is usually a relative or friend. It would be advisable for an inexperienced liquidator to obtain the assistance of a notary.

Liquidation of the Matrimonial Rights

The heirs are entitled to receive the deceased's patrimony, that is, all of his property and rights after deducting his obligations. When determining the assets, the deceased's matrimonial status must be taken into consideration. The spouse is not always the sole heir of his consort. That is the case, for example, when a spouse dies leaving a spouse and children.

Death is the occasion for the liquidation of the family patrimony protected by the Civil Code. The matrimonial regimes of community of property and partnership of acquests must be liquidated. Any other particular protective measures offered by the law to the surviving spouse must then be taken into account, such as: compensatory allowance, any claim for support after death and preferential allotments. Marriage has a considerable impact on the composition of the deceased's patrimony. Only an expert is in a position to correctly determine the respective rights and obligations of the former spouses when one of them dies. Failure to consult a notary can have dramatic results.

Accepting or Renouncing an Estate

According to the law, no one is obliged to accept an estate which has devolved to him. An estate may show a deficit, having more debts than assets in which event it is preferable to renounce it. The Quebec Civil Code innovates in abolishing the rule which obliged an heir who accepted an estate, without reserve, to pay all the debts even to the extent of becoming impoverished himself. However, the new law provides for situations where the heir can still be held personally liable for the debts of the estate.

Sometimes, it is preferable to renounce an estate. Before exercising their choice surviving spouses should take into account the benefits provided by their matrimonial rights. Consulting a notary before making the necessary decision is advisable and sometimes essential. The renunciation is then drawn up in the form of a notarial deed.

The Formalities

No one can ignore the tax consequences of the liquidation of an estate. The income tax returns for which the deceased is liable must be prepared. Nevertheless, the tax laws allow the heirs, at the time of death, to exercise certain options which may turn out to be profitable. Certificates must be issued by the tax authorities to permit the final distribution of the property to the heirs. These measures are fundamental and the taxpayers know that they must follow them. Ask your notary for help. He is aware of these requirements.

The Notarial Will: A Significant Advantage

Under estate law, the testator's wishes are sovereign. By drawing up a will, a person can freely choose his legatees. With his notary's advice, the testator may include in his will various provisions to considerably facilitate the settlement of the estate, accelerating its progress and minimizing the cost.

The notarial will remains with the notary, thus safeguarded from any loss and kept confidential. The notary will see to the entry of each will in the Register of Wills of the Chambre des notaires du Quebec without disclosing its contents. Finding it at the time of death is thus guaranteed.

The notarial will is the only one not subject to probate before the Court at the time of death. Under the Quebec Civil Code, the probate procedure is much more compli cated than before, one more illustration of the benefit resulting from the intervention of a notary.