Wills in the Province of Quebec

The Province of Quebec is rather unique in North America, as it is the only jurisdiction, with the exception of
Louisiana, to have the Notarial profession. The Notaire or Notary is of French origin and has existed in the
Province of Quebec since the inception of French Civil Law. 

The Notary plays an extremely important role in estate planning in Quebec particularly in the drafting and the
execution of your will. 

The Province of Quebec recognizes three types of wills:
a) The will executed before a Notary:
b) The will which you would draw up in your own handwriting, which is called a holograph will:
c) Wills made in the presence of two witnesses.

The will executed before a Notary requires one witness or, in certain cases, two witnesses. This will is authentic
in itself and does not require probate, which ultimately saves time and money in winding up the estate. There is
no doubt that when you choose to make a notarial will, you do avoid many complications. The notarial will
makes proof of the exactness of its date and of the veracity of the signatures. 

It is to be noted that the term probate in Quebec means that after the testator dies, it is necessary to deposit the
original holograph will or the original will executed before two witnesses in the hands of the court in order that
copies of the will may be issued. The procedure to probate a will is somewhat complicated, time consuming
and costly since the coming into effect of the new Civil Code of Quebec in 1994.
The notary however, is authorized to issue certified copies of the last will and testament of a testator without the
necessity of probating the will. The original of the Notarial will remains with the Notary who executed the will.
Furthermore, it is safeguarded from any loss and kept confidential. 

One of the obligations of the Notary is to see to it that there is registratiuon of the will with the Register of Wills
of La Chambre des Notaires, without disclosing the will's contents. Consequently, every month the Notary is
obliged to prepare a written report to La Chambre des Notaries listing the names, addresses and dates of all of
the wills the Notary executed during the past month. 

The purpose of this registration is to be able to easily locate a will executed before a Notary in the event that the
heirs are not aware if in fact the deceased left a will or if a notarial will had been executed. 

Lawyers, who execute wills on behalf of their clients, also are required to follow the same kind of registration of
wills with their bar Association. However, the lawyer's will would be classified as a will before two witnesses and
would ultimately require probate. 


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Settling An Estate In Quebec

Since the enactment of the new Civil Code in Quebec, the procedure in winding up a Quebec based estate has
become more complicated. The Civil Code now uses the term 'liquidation' when referring to the settling of an
estate in Quebec. The estate can be of a testamentary nature (deceased leaves a will) or an intestate estate
(wherein the deceased dies without leaving a will). The law specifically indicates that the liquidation of the
estate consists in identifying and calling in the successors, determining the content of the succession,
recovering any claims due to the estate, paying the debts of the succession, whether these be debts of the
deceased, charges on the succession or debts of support, paying the particular bequests, rendering an account
and delivering the property. 

In accordance with the new Civil Code, where the succession is obviously evident, the heirs may, by mutual
agreement, liquidate the sucession without adhering to the prescribed rules for liquidation of an estate. As a
result of this decision, they are liable for payment of the debts of the succession from their own estate, even
when the debts are of greater value than the property received. Consequently, we can see the danger, if the
heirs do decide not to follow the various steps in winding up a Quebec estate. In this latter situation, the heirs
must be absolutely sure that the value of the assets of the estate are superior to the debts, if they do not want
the monies or the property of their own individual estates to be used to pay the debts of the deceased's
succession. As an example let us say that A and B decide to accept C's estate and they wish to follow the
various steps outlined in the Civil Code concerning the winding up of the estate. They discover sometime after
acceptance of the estate that C owes a considerable sum of money to the federal and provincial income tax
departments. As they have accepted the estate, and as they have not complied with all the requirements of the
Quebec Civil Code, they could be personally liable for C's tax liability, even though the debt is of greater value
than the property they received from C's succession. 

Among the usual steps involved in settling a Quebec Estate are the following:

- securing the proof of death of the deceased; which is usually an official death certificate isued by the register
of Civil Status:

- searching to see if the deceased left a will executed before a Notary or lawyer:

- Appointment of a liquidator; if one has not been named in the will or if no will exists under the provisions of the
new Civil Code, a new regime of administration and liquidation of an estate has been created with the
introduction of the concept of liquidator:

-taking care of the funeral arrangements:

-probate of the will; If the will was either in holograph form or a will executed before witnesses: a Notary's will
does not require probate:

-analyzing the will; if one exists, and the provisions therein contained:

-making an inventory of all the assets and liabilities of the deceased, including any safety deposit box:

-liquidating matrimonial rights:

-publishing the necessary notices in the newspaper and the registry office:

-advising the heirs of their rights in succession. which will permit the latter to either accept or renounce the
estate:

-paying the debts of the estate:

-preparing the necessary declarations of transfer of the assets of the estate, paying the debts, filing the
necessary income tax returns including the request for the certificates of distribution of the assets of the estate:

-delivering the bequests and dividing the residue of the estate:

From this brief analysis, we can very well see the numerous tasks involved in winding up a Quebec Estate. The
Quebec Notary, who is skilled in estate and succession law, will be able to provide the necessary legal advice
to a liquidator who has been appointed to carry out the functions of liquidating an estate in Quebec. 

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If I Was Ill Or Injured?

March 1996 

One of the major changes to Quebec Civil Law before the enactment of the new Civil Code was the introduction
of the of the durable Power of Attorney or as it is known in Quebec, the Mandate. 

We are often confronted with the following questions: 

     Who will pay my bills, protect my assets and deal with my insurance company, in the event I become
     incapacitated? 
     Who will deal with medical decisions for me, such as doctors, nursing care, home health care, operations,
     treatments, thereapy, etc? 

Under the Civil Code of Quebec, it is possible to name someone who will take care of your property and make
medical decisions in anticipation of your incapacity. 

With this new provision in Quebec Civil Law, any person of sound mind and of the age of majority can draw up a
mandate. The person drawing up the mandate is called the mandator. 

This document would appoint another individual or perhaps a trust company, who is called mandatary. 

The mandatary would ensure the well being of the mandator and would administer the mandator's property in
case of incapacity. 

You may ask how does one go about drawing up this Mandate document? 

In the Province of Quebec a Mandate may be drawn up in 2 forms : 

     A mandate executed before a Notary, who has the obligation to register with the Board of Notaries the
     fact that his or her client has executed a mandate before them: or 
     It may be signed by the individual before two witnesses, who have no interest in the act and who are in a
     position to ascertain whether the mandator is capable of acting. 

The mandate drawn up before a Notary would be preferable, as it enables the mandator to secure advice from
an legal authority concerning the ramifications of the mandate. It is also preferable due to the fact that the
Notarial Mandate is very difficult to contest before the courts. Furthermore, the Notary does have the obligation
to fully explain to his or her client the consequence, significance and extent of the document. 

In the event you do become incapacitated, a procedure known as homologation must be instituted by your
mandatory. 

This procedure is effectuated by a Notary or Lawyer before the court. This Notary or Lawyer presents to the
court a medical report signed by a qualified medical doctor and a psychological and social assessment signed
by a social worker or psychologist. These reports indicate that the mandator is unable to take care of himself or
herself, as well as being unable to administer his or her property. 

Prior to appearing before the court, the Notary or Lawyer must serve a copy of this motion to the mandator as
well as to a third party, usually a relative or good friend of the mandator. 

After the motion is presented, an officer of the court reviews the file in the presence of the Notary or Lawyer and
then will proceed to visit the mandator in order to ascertain that the latter is in fact incapable of looking after his
or her affairs. 

Once the judgement is pronounced by the Court, the mandatary may act on behalf of the mandator in a way to
fully ensure his or her care and administration of his or her property. 

Very often a Power of Attorney and Mandate are drawn up in the same document. The Power of Attorney would
permit another individual or institution or represent you in the performance of a juridical act with a third person
even before you become incapacitated. As long as you are capable of acting, the attorney may represent you.
However, once you become incapable of acting, the power of attorney, which would have to contain provisions
forseeing your inability to act yourself, must be homologated. 

The mandate may revoked at any time and a new mandatary chosen. However, if you become incapable, you
would not be able to revoke the mandate. 

As part of life planning, it is very important to consider the consequences of your inability to make your own
decisions in the event you become too sick to look after your own affairs. 

Remember, if you have not made these provisions, the court will decide who is to look after your assets and
physical well being. In other words, it is not you who decides but rather the court! Which do you prefer? 

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