Have you ever wondered what would happen if you died without a will? What would happen to your belongings? What about your kids or pets?
This is a reality for over 43% of adults in Quebec who don’t have a will. In this article, we’ll cover what happens when you die without a will and when you should consider making yours.
What is a will?
First things first, what exactly does your will do? Your will is a legal document that clearly outlines who your assets will go to when you pass away, who will be your liquidator to wrap up your estate, and if you have kids, who will step in as their tutor to take care of them.
If you pass away without a will, you’ve died intestate – which is basically the fancy way of saying you’ve died without a will. In this situation, what happens next is dictated by Quebec provincial law.
No, the government doesn’t automatically get your assets if you die. But Quebec provincial laws dictate how your assets will be distributed, and the law outlines who will be appointed as your liquidator. In most situations, this will not be the same as what you would have decided yourself.
So What Exactly Happens If I Die Without A Will?
Dying without a will creates a lot of work and stress for the loved ones you leave behind. Your family and friends may be surprised to learn you don’t have a will and it can be a shock for your surviving loved ones. Without a will, there is nothing to guide them on your wishes. It leaves them with no instructions for how to distribute your belongings, and often your will includes your funeral and burial wishes as well
Without a will, there is a lot of time, money, and work required from your loved ones before your estate can be distributed. This can cause extreme delays in wrapping everything up.
Beyond that, your loved ones don’t necessarily get to just choose what they want. Your estate will default to some rules.
Who Will Get My Estate?
Your will is the document where you outline how you’d like your assets and belongings to be distributed. If you don’t have a will, it means you don’t get to choose. This means you can’t leave money to a charity you care about, you can’t leave any gifts to loved ones and you can’t set aside money to cover the cost of care for your furry family members.
If you die intestate, Quebec distributes your estate according to the Civil Code of Québec once your debts, taxes, and estate expenses have been paid. These rules offer very little flexibility. While individual cases may be handled differently, this is typically the order of distribution:
- If you have a spouse but no children, your spouse gets 100% of your estate.
- If you have a spouse and children, your spouse gets 1/3 of your estate and the remaining 2/3 is divided equally between your children.
- If you have children but no spouse, your estate is equally divided between your children.
- If you have a spouse but no children and your parents are surviving, your spouse gets 2/3 of your estate and the other 1/3 is divided between your parents. If one of your parents is deceased, the other gets their share.
- If you have a spouse, no children and no parents, but have siblings, your spouse gets 2/3 of your estate and the other ⅓ is divided among your siblings.
The only exception to the above rules is if your civil union or marriage contract includes a testamentary clause. If there is a testamentary clause, you are considered to have left all your property to your surviving spouse.
It is extremely important to understand that common-law or de facto spouses have no claim to an estate in Quebec. Spouses must be legally married or joined by civil union. Unlike many other Canadian provinces, where common-law spouses can make a claim against the estate, common-law spouses in Quebec are entitled to nothing. This was found in the famous case of Eric vs Lola, where the surviving spouse was declared to be owed nothing.
Therefore, if you are hoping for your common-law spouse to benefit from your estate if you pass away, you need a will. Otherwise, your estate will default to the legal succession rules and your spouse will receive nothing.
Who Will Be In Charge Of My Estate?
If you don’t have a will, you also won’t have appointed a liquidator. Your liquidator is an important role since they’re responsible for taking care of your estate, according to the directions you’ve laid out in your will.
If you don’t have a will or a liquidator appointed in your will, your heirs will share the role among themselves. This can be one or more of your heirs or they can appoint someone else. This can cause friction among your heirs or even end up being someone you may not have wanted to be in charge of your estate.
Who Will Take Care Of My Children?
If your dependent children don’t have another surviving parent, the court will decide on a tutor for your children.
The person appointed as tutor gains all the responsibilities of a parent. If you have a will, you can decide who you think would be best suited for this role, perhaps a sibling or a close friend. It also gives you an opportunity to communicate how you’d like your child to be raised, in the event you pass away.
Without a will, the tutor may not be the person you think would do the best job.
Your kids’ inheritance will also be held in a trust until they reach the age of majority. This can make it difficult financially for a surviving spouse to raise a family. The age of majority (18 in Quebec) is also often too young for children to know how to properly handle such a large sum of money.
Thinking about death isn’t fun, but not planning for it is worse.
While many Quebecers prefer to create a notarial will to avoid probate, a simple will in front of witnesses or holographic (handwritten) will can still avoid your estate from defaulting to intestacy. Even a simple will is better than no will at all. Platforms like Willful make it easy, affordable, and convenient to create both a will in front of witnesses (Willful’s $99 plan) or a notarial will*!
*Unfortunately, due to unexpected changes in Quebec's legislation, our Notarial Will plans are temporarily unavailable. Check back soon for more updates.
Regardless of what type of will you choose to make, creating a will should be a priority to help protect you and your loved ones. Dying without a will leaves the burden on your family to wrap up your estate, which can lead to stress and frustration. It is even more important in Quebec, since not having a will can leave your loved ones (such as common-law spouses) vulnerable or even with nothing at all.
Don’t leave your family’s future in the hands of the court or judge – by making a will, you can ensure your wishes are honored and your estate is distributed exactly how you want.