Wills

WHAT WILL HAPPEN TO YOUR PROPERTY WHEN YOU DIE?

Whether you have many possessions or few, it is most important that they be passed on to those for whom you intended them at the time of your death. Isn’t it reassuring to know that at a time when your loved ones are saddened by your death, you will have everything planned out so as to avoid complications? Your will allows you to choose your heirs and legatees and to clearly establish your last wishes. In the absence of a will, the law will determine who inherits your property. A proper will guarantees that your wishes will be respected. Moreover, it can greatly facilitate the settlement of your estate.

WHAT TYPE OF WILL SHOULD YOU CHOOSE?

You may know that there are several types of wills, but what are they, exactly?

In fact, Quebec law recognizes three types.

The Notarized or Authentic Will

• This will is made before a notary and a witness and, in some cases, before a notary and two witnesses.

The Holographic Will

• This will must be written out in full by hand by the testator and signed by him, and must not by made by typing or other technical means.
• It does not require any witnesses.

The Will Made Before Witnesses

• This will does not necessarily have to be written in the hand of the testator (for example, it can be typed), but it must be signed by him or by a third person on his behalf, in his presence and according to his instructions. The testator must declare that the will is his in the presence of two witnesses who meet certain requirements. These witnesses must also sign the will in the presence of the testator.

If you choose to make a notarized will, it will take effect upon your death. On the other hand, if your will is not notarized, it must, after your death, be subject to a verification procedure by a notary or by the court.

The notarized will is not subject to such a verification procedure because the law recognizes the notary as a public officer who can guarantee the authenticity of a will.

SOME GOOD REASONS TO CHOOSE THE NOTARIZED WILL

A will is a legal document of primary importance that is used as a basis for the settlement of your estate. For this reason, it is essential that it be well drafted, complete and, above all, unambiguous. By using the services of a notary, who is a jurist with experience in estate planning and drafting of deeds, you are assured that there will be no difficulty in interpreting your will. Your notary knows the importance of the choice of words. In accordance with the requirements of the law, he will draft your last wishes according to your instructions. Moreover, his advice helps you remember to include everything, which will simplify the task of those who will liquidate your estate.

Another advantage is that the original of your notarized will is kept in a safe place by the notary, protected from loss or destruction. Finally, the notary will have it listed in the Register of Wills of the Chamber of Notaries. It should be noted, however, that the notarized will is not filed in the Register: it is only registered there, which ensures discretion while facilitating its discovery upon your death.

THE REGISTER OF WILLS, A WONDERFUL SYSTEM 

Having always been the guardians of the most intimate secrets of Quebecers, in 1961 Quebec’s notaries innovated by introducing a registration system for the protection of wills.

This system, known as the Register of Wills of the Chambre des Notaires, now has more than 6,000,000 testamentary registrations.

A VERSATILE SYSTEM 

As a result of changes made to the Register in 1978, non-notarized wills can now benefit from being listed in the Registry.

Thus, the holograph will and the will before witnesses may be entered in the Register in the same way as the notarized will. It is nevertheless necessary that the registration be made through the intermediary of a notary of your choice who will file your will.

AN ADVANTAGEOUS SYSTEM 

Designed and created to guarantee your last wishes, the Registry has many advantages:

• It maintains the confidentiality of the will, for only its existence is registered
• It allows you to trace your last will after your death
• It eliminates the risk that your will may be ignored or found too late, after the estate is liquidated
• It avoids situations in which a holographic will, or will before witnesses, is accidentally or maliciously destroyed by certain people disappointed with its provisions.

Thanks to these advantages, the Registry promotes the discovery of your testamentary wishes and thus accelerates the settlement of your estate.

A SYSTEM THAT IS EASY TO ACCESS

When you opt for a notarized will, you eliminate any complications. The notary, in addition to advising and guiding you, will ensure registration of your will in the Register.

If you decide to make a holographic will or a will in the presence of witnesses, you gain a clear advantage by sending it to your notary who, after having placed it in his files for safekeeping, will enter it in the Registry.

To verify the existence of a will following a death, you must contact your notary or the Register of Wills of the Chambre des notaires directly by producing proof of death.

Register of Wills 

Chambre des notaires du Québec
Tour de la Bourse
800 Place-Victoria
Suite 700, C.P. 162
Montreal (Quebec)
H4Z IL8

Source : Chambre des notaires du Québec (Translation)