Quebec has a different legal system than the rest of Canada so it’s important to be familiar with the local nuances when creating your will.
In this article, we will answer all of the common questions about creating a will in Quebec, and what’s needed to make it official.
What Is A Will?
Your last will and testament is a legal document that outlines how you wish to distribute your assets, such as property or money, after you pass away. It also outlines tutors (guardians) that you would want to care for minor children and pets after you die. Your will is also where you name your liquidator, the person who will be in charge of settling your affairs on your behalf.
When And Why Do I Need A Will?
Creating a will is an important responsibility of an adult and can be created once you reach the age of majority in Quebec, which is 18 (barring certain exceptions - for example in Quebec you can create a will before turning 18 if you are married, or if the assets you are leaving are low in value). Life is unpredictable but having a will can help us prepare for the unexpected and protect our loved ones from future chaos and complications.
Assigning a liquidator helps provide access to the necessary accounts and property to settle your estate – if you pass away without a will, your heirs will appoint a liquidator to wrap up your estate, and it may not be the person you would have chosen. Even if you do not own much in terms of assets, something as simple as access to clean out your fridge and personal belongings may be delayed if no liquidator has been selected in advance.
While all adults should have a will, here are some key factors that drive people to create their will:
- You recently got married or remarried
- You are currently in a common-law marriage - in Quebec, common-law spouses are not entitled to anything when their spouse passes away unless it is outlined in a will
- You recently went through a separation or divorce – in Quebec, a legal divorce revokes gifts made to an ex, but it’s still best practice to remove them from the will. If you are separated but not legally divorced, you are still considered married in the eyes of the law, and your ex could make a support claim
- You have assets such as a home or multiple properties
- You have a child(ren), pets, and/or other dependants
- You own valuable heirlooms such as art or jewelry
- You have assets that as a result of your death may cause tension among surviving family
- You own a business or have investments
- You have a cause that you’d like to donate to upon your passing
If any of the above situations apply to you, it is a good idea to create a will as soon as possible so you can have peace of mind that your assets will be distributed among your loved ones in the way you intended.
Do I Need A Lawyer Or Notary To Make A Legal Will In Quebec?
law does not require you to create your will with a lawyer or notary. A lawyer or notary can assist if you need legal advice, but many people have simple situations that may not require legal advice. Platforms like Willful can guide you through the process to customize your legal documents to fit your needs and wishes.
Quebec has a different legal system than the rest of Canada, and the laws governing wills are outlined in the Civil Code of Quebec, which was introduced in 1994. Quebec is also the only province that recognizes notarial wills (for notarial wills, there are rules set out by the Notaries Act). It’s important to understand the nuances in local laws.
Wills that follow the provincial requirements in Quebec (for example a holograph will or an online will like the one created with Willful’s Essentials plan) are just as legal as those prepared by a lawyer or notary as long as they are executed properly. The legality of a will holograph will or will in front of witnesses is based on the final document and correct witnessing and signing, not on who prepared it.
However, only a will that complies with the requirements for a notarial will that is executed by a notary can be deemed a notarial will, thus avoiding probate after you pass away. And a lawyer or notary are the only people who can give you legal advice as you create your will.
Some people may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, how to address complex business needs, etc.) and might need customized language beyond what is offered on Willful.
Read More: How To Make A Legal Will In Quebec
What Happens If I Die Without A Will In Quebec?
With reasons like, “I’m too busy in my daily life,” “it’s a morbid topic,” or “I’m too young to worry about a will,” it’s easy to understand why Willful’s research shows that more than 43% of Quebec residents do not have a will.
In the event you die either completely or partially without a will, the law says that you have died “intestate,” meaning that you haven’t left any instructions as to how you would like your property to be divided and distributed. It’s also possible to have a will but still be partially intestate. This happens when your will doesn’t account for what should happen to the residue of the estate - everything that’s left after debts/taxes have been paid and particular legacies have been distributed, or a legatee passed away and cannot receive a gift.
So what does that mean for your assets? In these circumstances, your property will be divided according to the laws outlined in the Civil Code, which prescribes a set formula for how your assets will be distributed based on your heirs. If you are legally married, your spouse will be entitled to a share of the family assets, and then the rest of your assets will be split between your spouse and children if you have them. If you don’t have children, it moves on to your parents, siblings, and down the line of family relationships. To see a detailed breakdown of how your assets are distributed in Quebec if you die without a will, click here.
Negative implications if you choose not to make a will, or do not get the chance before you pass on, may include but are not limited to:
- Your estate may not be divided how you want it to be
- While spouses are entitled to part of your family property and a share of your estate, common-law spouses (often called “de facto spouses” in Quebec) are not entitled to anything
- The court will decide who becomes the caregiver of any children
- Financial and emotional difficulties for your spouse and family (especially for those who are in common-law relationships)
- A missed opportunity for any charitable donations
- The time it takes to close your affairs may take months and even years longer than if you had a written will
We’ve all heard stories before about celebrities who die without a will, but this drama and pain is not exclusive to those with fame and massive fortunes.
How Is My Will Used After I Die?
Your will is the roadmap to help guide your liquidator to settle your affairs on your behalf.
It will be the job of the liquidator named in your will to distribute your assets as requested, which could include transferring ownership, paying off your debts, filing income tax returns, and distributing any remaining assets according to the terms of the will. Sometimes a liquidator is referred to as your personal representative. The liquidator is also responsible for following your wishes with regards to the disposal of your remains and your funeral planning. If you have specific wishes concerning your disposal, it is important that you appoint a liquidator whom you can trust to fulfill your wishes.
How Do I Store My Will In Quebec?
Quebec is the only province that has a mandatory will registry. This registry is exclusively for notarial wills, and it’s managed by the Chambre des notaires. When you create a notarial will with Willful, our partner notary will take care of registering the will for you. Your will is stored with the notary, and when you pass away your family can access that copy. There is no need to store another copy of your will, although the notary will provide you with a certified copy of the document for your records. Due to COVID-19, the Chambre des notaires is allowing for online execution of notarial wills (we’ll guide you through this process if you purchase the Notarial plan on Willful).
If you create a will with a lawyer, they will register it with the Barreau du Quebec. When someone passes away, if they did not have a notarial will, the liquidator has to provide proof of will searches with both the Chambre des notaires and Barreau du Quebec before they can proceed with probate.
If you create any other type of will (handwritten, a Willful Essentials will, or a paper will kit), registration is optional. Willful provides a free will registration ($40 value) on the Canada Will Registry with every Essentials plan purchase. This does not register the actual copy, since it’s not legal to store a will online in Quebec - rather it registers the date you created the will, your name, the liquidator’s name, and the location of the will. Registering your will on CanadaWillRegistry.org also helps to ensure your liquidator knows where it is - so if they forget, or you forget to tell them, your liquidator can perform a search to find out exactly where it’s located.
It is not legal to store a will online (you must store a paper copy), and you also can’t have multiple copies of your will that you distribute to several family members. Only the original signed physical copy of your will is legally valid.
If you do not have a notarial will (for example, you have a Willful Essentials plan), an original copy of your will should be stored somewhere safe, in a place that is known and accessible to your liquidator. If you’re keeping your will at home, we recommend storing it in a fireproof box or bag. Keep it away from moisture, direct sunlight or anything else that can impact the paper and ink. The key is accessibility - for example many put their will in a safety deposit box, and the liquidator can have trouble accessing it when the time comes.
Can I Update My Will?
A will is not a one-and-done type of document. It’s living and breathing and should reflect life’s changes as they happen. Monumental moments like the birth of a child, purchase of a new home, marriage, or divorce are all life events that can directly affect and change your wishes.
An outdated will may mean your assets could end up with someone that you’re no longer associated with such as a former common-law partner. At Willful, we firmly believe that keeping an updated will is paramount and doing an annual check-in can help prevent outdated wills.
When To Update Your Will:
You may want to update your will after:
- The birth of a child
- Separation or divorce
- Purchase of an asset that you want to leave as a particular legacy
- Death of someone named in your will
- Move to a new province
In order to do that, you can either use a codicil (essentially an add-on to your will) - which is not something we accommodate at Willful - or you can execute a new will that revokes the previous version, which is how you make updates at Willful. All updates to your will are free (excluding any additional executions/registrations by our notary partner).
With the Willful Essentials plan, you can update your will by making changes in your account, and then printing/signing/witnessing your new will. This revokes any previous will, and it’s best practice to destroy any previous versions. If you purchase a Willful notarial will, you can update your document by making edits in your account, and then you will need to pay for another execution and registration with a notary (your Willful Notarial will plan only comes with the initial execution/registration by a notary).
You can also update your will through what’s called an annotation, which is essentially just a handwritten change – for example by crossing out or adding something to a paper copy of your will with a pen. If you make this type of alteration to your will, you have to follow the requirements to make it legally-valid (sign next to the change you made and have two witnesses also sign next to your signature, or if it’s a handwritten will, only you have to sign it).
What Happens To My Will If I Move Out Of Quebec?
A will written in Quebec will be valid in other provinces, so long as its provisions do not contradict the laws of the province it is being applied in. There are differences in the laws, but courts will do whatever they can to carry out the clear intent of a will drafted in another jurisdiction.
At Willful, we ensure that each document we generate uses the correct terminology and verbiage outlined by the legislation in each province. We partner with local estate lawyers in each province who keep us updated on any changes in the law that could impact our customers and their documents.
Can I Digitally Sign And Store My Will In Quebec?
Yes! Due to emergency measures put in place due to COVID-19, the Chambre des notaires is allowing for digital executions of notarial wills. With Willful’s Notarial plan, you can create, sign, and store your will online. We guide you through creating your document, and connect you with our notary partner to electronically sign your document. The notary then registers and stores your document online. Voila!
If you purchase Willful’s Essentials plan, you’ll need to grab a pen because any non-notarial will cannot be signed electronically. You will need to print and sign a paper copy of your will, and ensure that two witnesses sign it as well. You may sometimes hear the term “wet signature” which just means a signature that needs time to dry or is signed in ink.
Who Can Act As A Witness When I Sign My Will?
Once you have drafted your will, and it accurately reflects your wishes, you must sign and witness it properly (unless you handwrite your will, in which case only you need to sign it).
Read more about How To Witness Your WillIn Quebec to learn more about choosing valid witnesses.
What Should I Do After I Create My Will?
It’s not over yet! Once you’re happy with your will and it’s been signed and stored in a safe place or registered with the Chambre des notaires here’s what to consider next.
- Update it after life changes: It’s essential to keep your will up-to-date as life changes. Consider setting a calendar reminder every 6 or 12 months, so your will doesn’t collect dust and reflects your most current wishes.
- Let your liquidator know you’ve picked them: It’s a role that requires a lot of responsibility; therefore you should inform the person they’ve been chosen in order to avoid any surprises down the road.
- Tell your liquidator and or family where it’s located: A will is pretty useless if nobody can find it! If you don’t have a notarial will, and you’re storing a physical copy, make sure to let a trusted family member or your liquidator know where they can access it should something happen to you.
- Register your will: If you choose the Notarial plan, our partner notary will register your will for you with the Chambre des notaires. If you pick the Essentials plan, Willful provides free registration on the Canada Will Registry so if your family or liquidator forgets where you stored your will, they can find its location through the will registry.
- Complete an affidavit of execution: If your will is required to go through probate, the courts will require that one of your witnesses provides a notarized affidavit of execution as proof that they were witness to the creation of your will. You can choose to get this done now, or it can be provided at the time of your passing. Note that this is not required if you purchase the Notarial plan.
- Record other key info your family would need to know: Your will is just the tip of the iceberg when it comes to wrapping up your life. Your liquidator would benefit from a list of key contacts (like your financial advisor, chosen tutors, or your legatees), key accounts (bank accounts, investments, etc.), other accounts (cable, Netflix, etc.), and any other instructions that aren’t contained in the will.
We hope this article helped you learn more about creating a will in Quebec.
Please remember that Willful is not a law firm and cannot provide legal advice. All information in our Learn Centre is general and public information can also be researched through your provincial Attorney General website.