THE NOTARY: ARTISAN AND OVERSEER OF THE ENTIRE PROCESS
Since the new Civil Code of Quebec came into effect, the settlement of an estate is now, more than ever, a delicate and complex process. The law provides for the transfer of the rights of a deceased person to his heirs and imposes specific rules to liquidate the estate. The notary’s intervention, when settling the succession, ensures that the numerous procedures imposed are properly carried out and the thorny legal issues are properly resolved. Disregarding his advice may result in an undue delay in the liquidation of the deceased’s business and may thereby jeopardize the fundamental rights of the heirs. Thus, the notary is the best adviser to the liquidator of the succession, who is charged, by law, with the settlement of the succession. The notary guides the liquidator through all the steps; he is, after all, the main artisan and the overseer of the whole operation.
To be effective, settlement of the estate requires that each step be carried out in accordance with the law, from the day of death until the final delivery of the property to the heirs.
The usual procedures include:
Each of these steps involve formal rules. Here are a few.
In the absence of a will, the law determines the heirs. The main effect of the will is therefore to exclude the application of the provisions of the Civil Code in order to give effect to the testator’s true intentions. Only the last wishes of the deceased must be executed. It is therefore essential to make a careful search of the personal affairs of the deceased to find whether there is anything written that contains the expression of his last wishes.
This search will often lead to the discovery of a private document or a copy of a notarial will. Yet this is not enough. Everything must be done, and nothing neglected, to be sure that this document indeed contains the last wishes of the deceased. That is why the Chambre des notaires du Québec created a register in 1961, where today there are more than 6,000,000 registered wills. It is therefore essential to consult it not only to verify the possible existence of a will, but also to ensure that the will that has been found is the last executed by the deceased.
DESIGNATION OF THE LIQUIDATOR
The Civil Code of Québec establishes a system for the administration and liquidation of the estate. It is the liquidator who is responsible for ensuring the perfect execution of the wishes of the deceased. The identity of the person chosen is usually revealed in the will. The heirs will make the choice among themselves if the deceased died without a will or his will does not provide for it.
The powers and duties of the liquidator are prescribed by law. The testator may nevertheless modify them to achieve specific objectives or to facilitate the settlement of the succession and the work of the liquidator.
The person designated as liquidator, and in whom the testator expresses confidence, is usually a relative or friend. Any liquidator would be prudent to enlist the services of a notary from the outset of the transactions surrounding the settlement of the succession.
The liquidation of an estate has major tax consequences. Tax laws require you to file the deceased’s tax returns. They do, however, allow the heirs to exercise, at the time of death, certain choices which may prove to be profitable. The final distribution of goods to the heirs must be preceded by the issuing of certificates issued by the tax authorities, which authorize the delivery of the goods. These measures are important and taxpayers must comply. Ask your notary for help. He is well versed in this area.
THE LIQUIDATION OF FAMILY PATRIMONY AND MATRIMONIAL RIGHTS
The heirs will receive the patrimony of the deceased, that is to say, all his property and rights, after deduction of the payment of his debts and the attribution of particular bequests. To determine the assets included in this patrimony, it is necessary to consider the marital status of the deceased.
The family patrimony must be liquidated when there is a death. The matrimonial regimes of community of property and the partnership of acquests must also be liquidated. It is important to take into account other specific protections that the law provides to the surviving spouse, such as the compensatory allowance, the maintenance claim and certain preferential powers. Marriage therefore has a considerable effect on the composition of the deceased’s patrimony. Only an expert is able to accurately assess the rights and obligations of former spouses following the death. Failure to consult a notary may have unfortunate consequences.
THE HEIRS’ OPTION
Unless exception, the law does not oblige any person to accept the succession which would belong to him. For example, if an estate is in deficit and carrys more debt than property, it would be appropriate to renounce it. The Civil Code of Quebec has innovated by abolishing the rule that says that an heir who accepts an estate unreservedly must pay all the debts of the deceased. The new law, however, provides for situations where the heir may still be held personally liable for the debts of the estate beyond the property he receives.
It is sometimes preferable, as we have said, to renounce succession. It is prudent and often essential to consult with a notary before making the appropriate decision. The renunciation, when it is wise to do so, is usually done by notarized deed.
THE NOTARIZED WILL: A CONSIDERABLE ASSET
The law of succession is such that the will of the testator is, in principle, sovereign. By his will, a person may freely choose his heirs and legatees. The testator may also, on the advice of his notary, make several provisions which will considerably facilitate the settlement of the succession and reduce costs.
The notarized will is preserved from any loss or alteration. The notary will register of each will in the Register of Wills of the Chambre des notaires du Québec without disclosing its contents. Its confidentiality is thus protected and its discovery, after death, greatly facilitated.
The notarized will is the only one not subject to the verification procedure. Any other will must be verified by a notary or by the court.
Source : Chambre des notaires du Québec (Translation)
Consultez votre notaire : il ne laisse rien au hasard.