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Why make a will?
Logically, you can leave whatever you want in a will. However, your last wishes will be respected if there are no legal problems.
Here’s more explanation:
- If the testator hands over something that is refused by the legatee, the bequest will not be enforced. The same applies if the legatee is deceased
- If an asset no longer exists, has been destroyed or cannot be found, it will not be given and there will be no monetary compensation
- If something does not legally belong to you, you cannot bequeath it
- If unenforceable conditions are included in the will, the conditions will be overridden
To protect the testator from abuse, it will also not be possible under any circumstances to make bequests to:
- a notary (or his close family) who helped to draw up the will
- a witness who was present when the testator signed the will
- a member of the host family if the testator was living there when the will was made
- an employee of a health or social services institution if the testator was there when the will was made
What is a will?
A will is a legal document in which you indicate how your property and money will be distributed upon your death. It answers two main questions: who will inherit what and in what proportion.
Planning your estate is the best way to ensure that your assets go to the people or organizations of your choice after your death.
What wills are recognized in Quebec?
Here are the 3 recognized wills in Quebec:
- Notarial will
- Holographic will
- Wills made before witnesses
How do you choose a will?
Obviously, the will you choose depends on your needs and there is no one best option. However, no matter what type of will you choose, if the conditions of validity are respected, they all have the same value in terms of respecting your wishes.
Here's what you need to know about Holograph Wills, Notarial Wills and Witnessed Wills.
Making a will gives you the certainty that your assets will be distributed according to your wishes and helps avoid potential hassles for your loved ones once you are gone. Tips for preparing this important document.
The first two things you should do to protect your loved ones are to write a will and to protect yourself by having a notary draw up a mandate of incapacity in the event that illness or an accident deprives you of your faculties.
If you die intestate, i.e. without a will, all of your heirs will have to act as liquidators of your estate (or appoint a third party to perform this task), which may lead to family problems and even legal disputes. For example, you must have a Will if you want to leave money to your former spouse who may be your child's dependant.
Without a will, the Civil Code of Quebec will determine your heirs, which can lead to injustices. Did you know, for example, that a common-law spouse is not recognized as a legal heir? Think about it: if you die without having defined your last wishes, the person who shared your life for so many years may not be entitled to anything.
EVERYTHING YOU NEED TO KNOW ABOUT THE ONLINE WILL
The sample will sell in stores or on the Internet is a form that you must fill out. The form is used to guide you through the process of making a will and to help you think of things you may have forgotten. Sometimes it even comes with a guide to help you understand each element.
Who is eligible for a Witnessed Will?
Witnessed wills made by a lawyer
Benefits
- The lawyer can keep an original copy of the will, at your request, for a fee
- You benefit from the advice of a legal professional
- The lawyer drafts the will according to the law, which reduces the risk of problems of interpretation of your will at your death
- If an original of your will is kept by the lawyer, a mention of your will is made in the Register of Wills of the Quebec Bar, which ensures that it will be found upon your death
HOW LONG DOES AN ONLINE WILL LAST?
You must ensure that the form respects the rules of validity of the will in Quebec, which is different from those in other Canadian provinces and other countries.
What are the 3 different types of wills?
1. Holographic will
What is a holographic will?
Holographic wills are those that are written by you alone. According to the Civil Code, a holographic will must:
- It must be handwritten
- It must contain your signature
A holographic will does not require witnesses, but it is still recommended that you tell someone where you plan to keep it and how you filled it out. This way, you can be sure that everything will go smoothly as you age.
The location and date are not mandatory, but it may be a good idea to think about them. For example, the location will certainly help if you have made your will in another country. The date will also greatly simplify the situation for the executor if you have added parts or if you have made several wills. If there are any confusing parts, the most recent ones will take precedence.
What are the "pros" and "cons" of a holographic will?
Pros:
- It is very simple; can be made anywhere, anytime
- It is free
Cons:
- Again, yes it is free, but it must be validated after the death of the testator which can cause significant costs and delays.
- It is possible to lose it, to destroy it or to damage it.
- Obviously, since you do not have the benefit of legal advice, you may forget clauses or situations that may influence your decisions.
- If you forget to clarify certain situations (for example, you mention your granddaughter and not her name), you risk having some of your last wishes not carried out if you have multiple granddaughters.
The word "holographic" refers to a will that is entirely written and signed by the testator. Be aware that it is best to date and title your Will ("My Last Will and Testament", "My Will", etc.) so that your family knows that it is your most recent Will and not just a draft or a reminder.
Good to know: a video or audio recorded will is generally not valid since it is not written and does not bear the signature of the testator.
2. Witnessed Will
What is a witnessed will?
This type of will is as clear as its name suggests. It is a will that is made in front of two witnesses. Any adult can act as a witness. However, it is not possible to be a beneficiary of the will and a witness at the same time.
Witnesses are present for two reasons:
- To attest that it is your will and that your signature is attached to it
- To sign the will after you have signed it
In the case of a will prepared by a lawyer, it is the equivalent of a will before two witnesses. The will can be handwritten, computerized or typed. However, only a printed and signed version has legal value if it is not handwritten.
If you do not wish to read the entire contents of your Will in front of your witnesses, you are free to do so if you wish.
What are the pros and cons of a witnessed will?
Pros:
- It might be free if you do not use a lawyer.
Cons:
- After the death, even if it was made by a lawyer, the will must be validated, which can lead to costs or delays
- It can be lost, destroyed or damaged
- Of course, since you do not necessarily have legal advice, you may forget clauses or situations that could influence your decisions
- If you forget to clarify certain situations (for example, you mention your granddaughter and not her first name), you risk having some of your last wishes not carried out if you have multiple granddaughters
A witnessed will is a will that you can make on your own or with the help of a lawyer, but you must sign it in front of two adult witnesses who will sign after you. Avoid using one of your heirs as a witness. This person could be deprived of his or her inheritance, as beneficiaries of a will cannot act as witnesses.
A witnessed will can be handwritten or computer-generated. It can also be produced on the web in the form of a form that must be filled out on-screen and printed. In all cases, only the paper version has legal value. Each page must be signed or initialled by you and your witnesses unless you write your will entirely by hand.
To make a Will in front of witnesses, you have several options. You can write it yourself by hand or print it out from your computer, or you can write it from a form you buy in a store or on the Internet, or have someone else (like a lawyer) write it for you.
You must sign the will in the presence of two witnesses of legal age to whom you are not leaving anything. If you leave a legacy to one of the witnesses in your will, it will be void.
It is preferable to choose witnesses who are young and fit since at least one of them must be able to provide a sworn statement at the time of your death in order for the will to be verified. You must declare in their presence that it is your will, and you must sign it together.
3. Notarial will
What is a notarial will?
As simple as its name suggests, a notarial will is made with the help of a notary. In this case, the notary draws up the will and specifies your wishes, taking into account your family and financial situation. The notary also ensures that the conditions of validity imposed by the law are respected.
Among the 4 main conditions, we find:
- The will must be written in French or English
- The place and date must be indicated
- It requires your signature in the presence of a notary or a witness
- In the presence of the notary or a witness, your will must be read to you so that you can be sure that your last wishes represent what you really want.
What are the "pros" and "cons" of having a will drawn up by a notary?
Pros:
- Ensures the best respect of the civil code and what has been written since the notary is often very meticulous in the process surrounding the will
- You can benefit from the advice of a legal professional
- Since it has already been validated by a notary, after your death, it does not need to be validated after your death
Cons:
- Obviously, there is a fee for having a notary draw up your will
- A notarial will is prepared by a notary based on your wishes and your family and financial situation
The will must be drawn up by a notary and bear the date and place of signature. It is signed by the testator and the notary in the presence of at least one adult witness. It is an official document.
The notary ensures that all formalities required by law are respected. In particular, he or she reads your will to you and explains its contents. You must then declare before the notary and in the presence of at least one witness of legal age that this will contain the expression of your last wishes.
The notarial will has several advantages. First, the notary gives you advice adapted to your situation. He or she will accompany you in your reflection and can raise points that you may not have thought of, such as what will happen to your children's RESP upon your death. You can be sure that your will complies with the Civil Code and is clearly written, thus avoiding problems of interpretation.
The notarial will is automatically registered in the Register of Testamentary Dispositions of the Chambre des Notaires and the original is kept in a safe place. There is no risk of it being lost or destroyed by a malicious person, and it is difficult to contest.
How much does a notarial will cost?
The only disadvantage of a notarial will is that it can cost between $250 and $500 (or more, if your situation is complex). However, it is less expensive than other forms of wills that must be subject to an expensive legal verification after death.
The notarial will exist only in Quebec.
Cost of a notarial will
For the testator: You can spend from $200 to $1000 on a notarial will. Obviously, the bill can go up if the situation is complex. For example, if a parent has several houses, companies, etc.
For the heirs: In this case, there is no real cost for the heirs since they do not have to validate the will after the death.
Cost of a self-made Will
There are three options for the testator:
- Write your own will. In this case, it should cost you nothing.
- Write your will with the help of a form or a will kit. In this case, it will only cost you the cost of the kit or form.
- You could also write it all with the help of a lawyer instead of a notary. In this case, you will have to pay the fees for making the will with the help of a lawyer.
For the heirs: If it is not a notarial will, the heirs will have to pay, from the estate, between $1000 and $2000 to have the will validated. Obviously, all this can be avoided by having a notary present.
How to make a will at home?
Make a will in 4 steps
- Make an inventory of your assets
- Decide to whom you will leave your property
- Choose your executor and a guardian for your children
- Choose the type of will
Is it possible to make a will for two?
(SPOUSES OR FAMILY)
Unfortunately, it is not possible to make a will for two people.
As mentioned above, in Quebec, a person of full age or fully emancipated is free to bequeath and distribute his or her property to whomever he or she wishes if he or she is still of sound mind. It would therefore be contrary to make wills for two people when it is individual freedom.
For married people, there are some exceptions, namely, a clause in a notarized marriage contract. This clause allows you to leave all your assets to your spouse in the event of your death. However, you are still better off making your own will. You never know how things might turn out.
By making your own will, you can include people who are not included in your prenuptial agreement and you can leave assets in a more specific way.
Consulting a notary can be very helpful in understanding your situation and your options.
Be careful! If you have included certain assets for your spouse in your marriage contract, you may need your spouse's consent to leave something.
What's in a will?
For most people, a will is designed to distribute a person's assets, but in many cases, it can also be used to set the course for your loved ones when you are no longer around.
- Decide who will be in charge of your estate, the liquidator and his or her replacement, and extend his or her powers beyond those provided for by law if necessary
- Ensuring that the liquidator is compensated
- Develop financial and legal mechanisms to ensure that you leave your heirs in a positive context (e.g.: Trust)
- Appoint a guardian for your child if he or she is a minor
Some people may also determine all their funeral preferences in their will. However, it may be best to discuss this with your loved ones as the will is often opened after the funeral. In short, it's a good idea to think about it!
ARE ALL WILLS VALID AFTER A DEATH?
The law requires that probate be performed in order for a Will to be validated after death, except in the case of a notarial Will.
The probate must be done according to the law to confirm that the will is legal in form and that it is the last expression of the person's will. The verification does not take into account the content of the will, but rather its container, that is, the conditions of validity.
To have a Will validated, there are two options:
- probate by the court
- probate by a notary
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