INHERITANCE LAW

• FULL ESTATE SETTLEMENT

• Law provides for several steps to be followed to achieve the estate settlement. It includes several phases from the time of death to the handover of the assets to the heirs. Steps are as follows:

  OBTAINING THE PROOF OF DEATH

  • Finding the will
  • Checking the will
  • Opening an account on behalf of the deceased’s heirs at a banking institution
  • Reading the will
  • Determination of heirs
  • Determination of the liquidator in the absence of a will
  • Inventory of the deceased’s assets and liabilities
  • Heir’s acceptance or waiver of the succession
  • Claiming of life insurance benefits, pensions and death benefits
  • Reporting on federal and provincial taxes
  • Calculation of the rights of the surviving spouse in the family heritage and of the matrimonial rights
  • Publication of the notice
  • Administration of the property estate
  • Payment of debts and specific bequests
  • Final report
  • Partition of the property of the succession
  • Assets turned over to the heirs

• TESTAMENTARY RESEARCH

• The liquidator of the succession has to administer the deceased one’s assets and settle the estate. A certificate of testamentary research is requisite to start the process of the settlement. Such application must be made to the Chambre des Notaires and to the Barreau du Québec.

• THE APPOINTMENT OR REPLACEMENT OF THE LIQUIDATOR

• If you have been appointed as the liquidator of an estate and agreed to do so, you must administer the property of the deceased one and settle the estate. No one can be forced to be testamentary executor unless being the sole heir. Refusing to be testamentary executor means waiving the full estate. According to the civil code, the function of testamentary executor rests fully on the heirs, unless otherwise stated in the will. Heirs can appoint the liquidator up to majority and provide for the method of his replacement.

• COMPLETE INVENTORY OF PROPERTY

• The inventory is an essential step in the liquidation process. It fixes if it is a solvent or insolvent estate.  Heirs can choose to accept or waive the succession depending on the result.

• DECLARATION OF TRANSMISSION OF MOVABLE AND IMMOVABLE PROPERTY

• If the deceased’s property includes immovable assets such as ground, house, apartment building, a notary shall be consulted to draft a declaration of transmission in favour of a specified heir. The notary will then enter it to the Land Register.

• PROBATE OF HANDWRITTEN WILLS OR SIGNED BEFORE WITNESSES

• Our Code Civil does not recognize any “olographic” will (i.e. handwritten and handsigned will), nor any will signed before witnesses, unless they are probated by a Court or a by a notary after the testator’s death. This procedure aims to ensure it is the testators’s very last intention and that the witness is not void.

• WAIVER OF SUCCESSION

• The heir of the deceased one can accept or waive the succession. In order to take the right decision, it is important to wait for the liquidator to publish the notice of closure of the inventory of property at the Register of  Personal and Movable Rights (RDPRM). High debts exceeding the legacy is a reason to waive the succession, or to reveal unknown creditors.

• PROVIDING LEGAL ADVICE

• Succession is a cumbersome and sensitive process. The new Code civil of Québec imposes specific rules to wind up an estate. Calling upon a notary is a garantee that those strict procedures will be carried out properly without compromising any of the heirs’s fundamental rights nor risking getting any unpleasant surprise. The notary is the liquidator’s best ally to get successfully through the whole procedure.