SUCCESSION SETTLEMENT

THE NOTARY: CRAFTSMAN AND MASTER OF WORKS OF THE WHOLE PROCESS

Since the implementation of the new Civil Code of Quebec, the settlement of a succession is, more than ever, a delicate and complex process. The law provides for the transmission of the rights of a deceased person to their heirs and imposes precise rules in order to liquidate the succession. The intervention of the notary, during the settlement of the succession, ensures that the numerous procedures imposed are adequately executed and the thorny legal questions resolved properly. Neglecting his advice may result in an undue delay in the liquidation of the deceased's affairs and may, therefore, jeopardize the fundamental rights of the heirs. Also, the notary is the best adviser for the liquidator of the succession, who is responsible, by law, for seeing to the settlement of the succession. The notary guides the liquidator in all his steps; he is, after all, the main craftsman and master of works for the whole operation.

STEPS

To be effective, the succession settlement requires that each step be carried out in accordance with the law, from the day of death until the final delivery of the property to the heirs.

THE USUAL PROCEDURES INCLUDE:

  • Funeral arrangements
  • Obtaining proof of death
  • The search for the last will
  • Opening and inventory of the safety deposit box
  • Opening an account at a financial institution
  • Verification of the will, if it is made in a form other than notarial;
  • Analysis of testamentary dispositions
  • Determination of heirs
  • The designation of the liquidator, if it has not been made in a will
  • The making of the inventory
  • Claims for life insurance benefits, annuities and benefits
  • Tax formalities
  • The liquidation of family heritage and matrimonial rights
  • Publication of notices
  • Exercising the option of heirs
  • Administration of estate property
  • Payment of debts and specific legacies, if applicable
  • Transmission of goods
  • Accountability
  • The division of the property of the succession

THE SEARCH FOR THE LAST WILL

In the absence of a will, the law determines who the heirs are. The will therefore mainly has the effect of excluding the application of the provisions of the Civil Code of Quebec in order to give effect to the true intentions of the testator. Only the last wishes of the deceased must be carried out. It is therefore essential to conduct a thorough search of the deceased's personal belongings in search of a document containing the expression of their last wishes. The searches often prove fruitful and allow the discovery of a private writing or a copy of a notarial will. However, this is not enough. Everything must be done and nothing should be neglected to be sure that you have in your possession the last wishes of the deceased. This is why the Chambre des notaires du Québec created, in 1961, a register in which there are now more than 6,000,000 wills registered. It is therefore essential to consult it, not only to verify the possible existence of a will, but also to ensure that the will that we have in hand is the last executed by the deceased.

THE DESIGNATION OF THE LIQUIDATOR

The Civil Code of Quebec establishes a regime for the administration and liquidation of the succession. It is the liquidator who is responsible for ensuring the perfect execution of the wishes of the deceased. The identity of the chosen person is generally revealed by the will. The heirs will make this choice themselves if the deceased died without a will or if his will provides nothing in this regard. The powers and duties of the liquidator are provided for by law. The testator may nevertheless modify them to allow the achievement of determined objectives or facilitate the settlement of the succession and the work of the liquidator. The person designated as the liquidator, and in whom the testator shown confidence, is usually a relative or friend. The appointed liquidator may entrust a notary with the mandate of carrying out the liquidation of the succession and of reporting to it regularly, or he may, as a precaution, enlist his services to advise him at the start of operations. The liquidation of a succession often represents a very heavy task for the person in charge. In addition, it is likely to have its liability sought, in all cases where an heir, legatee or creditor claims his rights to be encroached because of a breach of the duties devolved upon it.

TAX FORMALITIES

The liquidation of a succession has important tax consequences. Tax laws require you to file tax returns for the deceased. They nevertheless allow the heirs to exercise, upon death, certain choices which may prove to be profitable. The final distribution of the goods for the benefit of the heirs must be preceded by the issue of certificates from the tax authorities and authorizing the delivery of the goods. These measures are important and taxpayers must comply with them. Ask your notary for help: he knows something about it.

THE LIQUIDATION OF THE FAMILY HERITAGE AND OF THE RIGHTS ARISING FROM THE MATRIMONIAL OR CIVIL UNION REGIME

The heirs are called upon to collect the heritage of the deceased, that is to say all of their property and their rights, after deduction of the payment of their debts and the allocation of particular legacies. To determine the assets of this heritage, it is necessary to consider the effects of marriage or civil union on the death of the person.

Death indeed obliges to proceed with the liquidation of the family heritage. The matrimonial or civil union regimes of the community of goods and the partnership of acquests must also be liquidated. It is important to take into account the other specific protections that the law offers to the surviving spouse, such as the compensatory allowance, the maintenance claim and certain preferential attributes. Marriage or civil union therefore has a considerable effect on the composition of the heritage of the deceased. Only an expert is able to assess, with accuracy, the rights and obligations of former spouses or civil union spouses following the death. Failure to consult a notary can have unfortunate consequences.

THE OPTION OF HEIRS

Barring exceptions, the law does not oblige anyone to accept the inheritance which has devolved to him. An estate can be loss-making and have more debts than property, in which case it is entirely advisable to give it up. The Civil Code of Quebec innovates by abolishing the rule that the heir who unreservedly accepts an estate must pay all the debts of the deceased. The new law, however, provides for situations where the heir can still be held personally liable for the inheritance beyond the value of the property he receives.

It is sometimes better to give up an estate. It is prudent and often essential to consult your notary before making the appropriate decision. It should be noted that the renunciation, when appropriate, is usually done by notarial deed and must be published in the Register of personal and movable real rights.

Consult your notary: he leaves nothing to chance.

The texts come entirely from the brochures of the Chambre des notaires du Québec.