A will allows you to choose your heirs and clearly outline your last wishes. It is the only sure way to avoid unnecessary confusion and hardship for all the important people in your life at the time of your death.

Without a will, the law decides who inherits

In the absence of a will, it is the laws of the province in which you reside at the time of your death that determine who inherits your property. In Quebec, the civil code designates the spouse and the children as the primary heirs. The spouse receives 1/3 of the estate, while the children inherit the remaining 2/3 in equal shares. (Note that the 1/3 share left to the spouse is in addition to whatever he or she may also be entitled to receive under the marriage contract and the Family Patrimony. This means that most spouses end up with quite a bit more than 1/3 of the total estate.)

If there is no spouse, the children inherit all. If there is a spouse and no children, the spouse is entitled to 2/3 of the estate; the remaining 1/3 is left to the parents of the deceased and if there are no surviving parents, the remainder goes to brothers and sisters. Only if there are no parents or siblings does the spouse inherit all. Lastly, if there is no spouse and no children, parents receive ½ and brothers and sisters the other half.

This all sounds reasonable enough. But ultimately, it is a one-size-fits-all solution that cannot accommodate all families. Settling an estate in this way can prove to be very “un-settling”. Some children are independent financially, others are not. Some have special needs while others are not even legally recognized because they are not blood relations. And what if there are two spouses?

De-facto spouses are vulnerable

Under the Quebec civil code, the definition of spouse applies only to individuals who are legally married. The de-facto unions of unmarried couples are not recognized by the law. This makes it possible to have one de-facto spouse and still be legally married to another person. It happens often enough. A marriage breaks down, the couple separates and establishes new relationships without ever getting around to reaching a divorce settlement. That leaves two spouses. And who is entitled to inherit? Since only a legally sanctioned marriage is recognized under the law, it is the “ex” who inherits while the de-facto spouse gets nothing – even when there are children born of the de-facto union. Doesn’t seem fair, does it? Things get really complicated when there is shared property in the de-facto union. What if, for example, your de-facto spouse were the sole legal owner of your family residence? In the absence of a will, you would have no claim to your own home! Talk about “unsettling”! The only way to protect the interests of a de-facto spouse is to make a will including him or her as one of your heirs.

And what of minor children who inherit in the absence of a will? Who is to manage their inheritance on their behalf? And up to what age? Who will care for them if there is no surviving parent? The law imposes rules and restrictions that are meant to protect the interests of minors. But the system can be very tedious, especially for a surviving parent who may not appreciate interference from either the legal system, extended family or both.

A family assembly chooses the legal guardian of minor children

In Quebec, when a child is orphaned and there is no will, a family assembly chooses the child’s new legal guardian. This family assembly is composed of a minimum of 5 people who are close to the child including grandparents, aunts and uncles even friends and siblings if they are over 18. In addition to choosing a legal guardian, the family assembly must appoint a guardianship council to oversee the administration of the child’s inheritance. If the child’s assets amount to more than $25,000, this guardianship council must be created even when there is a surviving parent.

The legal guardian is obliged to take full inventory of the child’s assets and report this information on an annual basis to both the guardianship council as well as the Curatel public. What’s more, the administration of the child’s assets is restricted by law, requiring legal probation in order to proceed on numerous types of transactions. Very tedious indeed!

Of course, all of this trouble could be easily avoided. With a will, parents can choose legal guardians for their children (if the children are orphans or the surviving parent is not capable). They can also leave all their assets to their spouses to manage on behalf of the children as they see fit. And, if that is not possible or appropriate, a will can set-out clear instructions to manage any assets bequeathed directly to minor children. Neither the public trustee nor extended family need interfere.

Where there is a will, there is a way…

Even if you do not have a spouse (let alone two…) or dependant children, taking the time to make a will is more than just the responsible thing to do. It is a gesture that says, “I care”.

With a will, you get to define who makes up your family. You spare everyone close to you a good deal of unintended and unnecessary hardship. You spare your estate unnecessary delays and legal fees. And with good planning, you can even reduce income tax. So what are you waiting for?

Any kind of legally recognized will is better than none at all, but the notarial will is best.

More on that to come, so stay tuned!