You may have heard the term probate in the past, or maybe it’s the first time you’re learning about it - either way, it’s an important element of estate planning. While it’s not you who handles probate - rather, it’s your liquidator who handles it after you pass away - it’s important to understand how the type of will you choose affects whether your estate will need to go through probate after you pass away.
In this article we cover everything you need to know about probate, including when it’s required, what you can do before you pass to make probate easier on your family, fees, and how to probate a will if you’re ever the liquidator of someone’s estate.
What is probate in Quebec and what does it mean to probate a will?
Probate serves to:
- Confirm a will is in valid form as outlined by the Civil Code in Québec
- Establish that it was written by the deceased
- Obtain certified true copies of the will
When is it required to probate a will in Quebec?
In Québec, probate is not required if you have a notarial will. That is why notarial wills are the most common type of will in Québec. If you have a holographic (handwritten) will, or a will in front of witnesses, probate will be required after you pass away.
When does probate happen?
If required, probate happens after someone passes away, and involves filling out an application - this application requires providing documentation (including a will) so a liquidator can acquire a probate judgment from the court to act on the deceased’s behalf and execute the wishes outlined in their will (or, if they didn’t have a will, acquire a grant of administration to distribute their assets according to a set of default laws in their province).
Who handles the probate process?
Typically your liquidator will apply for a probate judgment from the court; if not a liquidator, then it is handled by any interested party, or by a legal professional (a notary or lawyer). A probate judgment from the court can be issued by the Superior Court or by a notary.
Does every will In Quebec have to go through probate?
Not every will has to go through probate. Your will will need to go through probate if:
- You have a holographic (handwritten) will
- You have a will in front of witnesses (like with Willful’s $99 plan)
What is the cost to probate a will in Québec?
In Québec, the fee for an application of probate is $65. On top of this, if you’ve engaged a lawyer or notary there would be fees associated with that.
In the rest of Canada, probate fees are dependent on the size of your estate, and Québec does not have the same type of probate fees as other provinces.
What is a probate judgment from the court and what do I need to apply?
A probate judgment from the court is issued once the application for probate has been approved. When applying for a probate judgment from the court, your liquidator and/or the lawyer or notary who is preparing the application for probate will need to provide a variety of supporting documents including:
- An original copy of the will
- Will search certificates
- A copy of the testator’s act of death
- An affidavit of execution of the will - this is provided by one of the will’s witnesses, or someone familiar with it’s signing, and is essentially a way to confirm validity of the will. Note that this can be completed at the time you create your will, or it can be provided by a witness after you pass away.
- Additional supporting documents
View the full probate application and requirements in Québec.
Can I apply for probate myself, or do I need to hire a lawyer or notary?
While you can technically apply for probate on your own, most people hire a notary or lawyer to help with the process since it can be complex. If you need help with an application of probate, reach out to our legal advisors at Spiegel Sohmer.
How can I avoid probate in Quebec?
In Québec, it’s quite simple: the only way to avoid probate is to create a notarial will.
What is an affidavit of execution in Quebec?
An affidavit of execution is a document that accompanies an application for probate that helps to confirm the validity of the will. If you do not have a notarial will, this form is required.
This form is filled out by one of your witnesses, or someone else familiar with the drafting and execution of the will, and states that they were with you when you signed your will, and that they were in the presence of you (the will-maker) as well as the other witness, and they confirm these statements to be true. After completing the form, the witness needs to get the form signed before someone authorized to receive sworn statements in Québec (a lawyer, notary, or commissioner of oaths), and then it is stored with your will.
It is then provided to the courts after you pass away as part of a liquidator’s application for a probate judgment from the court.
Is this required to make my will legally valid?
No. As long as you follow the instructions to create, sign, and witness your will correctly, you have a legally-valid will in Québec. An affidavit of execution is a separate document that is only required by the courts if your will is required to go through probate.
Do I have to get an affidavit of execution at the time I create my will?
No, you do not. Many people choose to get an affidavit of execution completed at the time they create their will, while others choose to get one in the future - it can also be completed after your passing.
Who signs my affidavit of execution?
After completing an affidavit of execution, the witness needs to get the form signed before someone authorized to receive sworn statements in Québec (a lawyer, notary, or commissioner of oaths).
Why would I get it now vs. later?
Many people opt to get an affidavit of execution at the time they create their will if:
- They want to alleviate this task from their liquidators’ list after they pass away
- They don’t expect to make updates to their will (an updated version of the will would require a new affidavit of execution)
Many people opt not to because they expect to make multiple updates over time; they don’t want to incur the cost now; or they simply do not take the extra step.
Is there a cost associated with it?
Willful provides a free affidavit of execution document in Québec. Willful does not have a notary on staff - you would need to pay to have the affidavit of execution signed by a commissioner of oaths, which is typically $15-30.
This can step can also be completed with our notary partner. Please email email@example.com for more information.
What happens if I pass away and I haven’t completed an affidavit of execution?
Your liquidator (or whoever is applying for probate) would find one of your witnesses, who would complete it after you pass. If both of your witnesses have passed away or are unreachable, your liquidator would have to show the courts they made a reasonable attempt to find them, and provide other evidence that helps to support the validity of the will. It’s a good idea to store the contact information for your witnesses with your will so your liquidator can easily track them down after you pass.
See page 35 of this guide to applying for probate for a sample affidavit. A notary can provide one for you as well.
Additional Resources On Probate
Here are some additional resources for applying for probate: