When it comes to validating a Will after someone passes away, Quebec residents have it much easier than the rest of Canada. Outside of the province, estates often need to go through a complicated and potentially costly legal process called probate, but in Quebec, that process doesn’t exist.
“What we call probate in Quebec is the process of verification of Wills,” explains Fadia Abou-Nassif, BMO Private Wealth's Montreal-based Director of Estate Planning.
Ensuring the validity of a Will is an important part of estate planning – it ensures that the person's last wishes are respected, and that heirs can claim the assets left to them by the deceased in good time. Given the emotions felt after the death of a loved one, it is essential to make the validation process as straightforward as possible, and to avoid any uncertainty as to the distribution of assets.
The best and fastest way to respect a person’s last wishes is to have a notarial Will, which Abou-Nassif and her colleagues always recommend to clients. When you’re ready to write down your wishes, you’ll meet with a notary, who will document your plans. You and a witness (a notary other than the one receiving your Will) then sign and date the Will, while the notary affixes his seal to the document, deposits it in the Register of Testamentary Dispositions of the Chambre des notaires du Québec and keeps a copy.
A notary is first and foremost a public officer whose role is to draw up notarial deeds, such as real estate sales, contracts or Wills and is responsible of authenticating deeds. They focus on the drafting and legal validity of deeds. The advantage of having a notarized Will is that after you pass away, the Will is automatically validated without any further action needed.
Simpler Wills, more complicated verification
There are two other types of Wills accepted in Quebec: holographic and in the presence of witnesses. If one of these forms is used, the Will must be probated and verified, by the Quebec Superior Court before it can be executed after your death.
The Will signed in the presence of witnesses can be prepared by you or your lawyer. It should be signed by you, the testator, and two witnesses of legal age. The other, a holographic Will – a Will that’s handwritten and signed and dated by the testator – is the hardest to validate, since there are no witnesses.
These Wills are more likely either to be lost or not found easily, except if done by your lawyer, who will publish your legal document in the Registers of Wills and mandates of the Barreau du Québec, or they can be contested more easily since no notary has verified that the testator is of sound mind at the time of signing.
Some people decide not to use a notary because of the cost, which can range from a few hundred to several thousand dollars. However, it can cost far more to get a Will validated after you pass away, not to mention legal fees associated with a contested Will or even the loss of some of the estate planning strategies available. After you have passed, any interested party, like a family member, will have to contact a lawyer or a notary and follow the process to verify the Will. The legal demand is presented to a clerk of the court to obtain recognition of the Will – a process that can take at least four to six months and cost thousands of dollars in professional and legal fees.
Added benefits
Talking to an estate planning wealth professional as you’re working on your Will can be beneficial for a number of reasons. Not only can they advise you on how your Will should be structured and what kind of strategy you should adopt to achieve certain objectives, but they can also review an existing Will to identify any parts that don’t align with your personal situation.
“When we talk to a client, we help them see what can be done based on their personal, family, financial and corporate situation, including tax transfers and other important elements and strategies,” adds Abou-Nassif. “The notary drafts the legal documents, but we spot the specific elements that the professional needs to take into account.”
And if you’re from out of province and unfamiliar with the differences between the rest of the country and Quebec, they can also help you navigate any challenges you run into.
Ultimately, Abou-Nassif says that getting a notary is the way to go. Some people avoid it because they don’t want to pay the upfront costs, but taking the Will to court will be far more expensive. “You don’t want to pass on those fees,” she says. “A notarial will gives you peace of mind.”
