Why a notarial will?
A notarial will offers the most advantages. As a general rule, this type of will is made before a notary and a witness.
» It allows the liquidation of the succession to be initiated more quickly.
A notarial will comes into effect immediately upon the death of the testator. All other types of wills—handwritten (holograph) or signed by two witnesses—must be probated. This delays the beginning of the settlement of the succession and entails legal fees that are undoubtedly higher than the cost of drawing up a notarial will. Writing your own will is not synonymous with saving time and money.
» It ensures that your wishes are faithfully recorded in writing.
Your notary is a specialist in succession law and an expert in drafting legal documents. This will ensure that your will is well written, complete and, above all, contains no ambiguity. By going to a notary—a lawyer experienced in estate planning and drafting notarial acts—you can rest assured that your will is perfectly adapted to your financial situation and that there will be no problems interpreting it. Your notary knows the importance of choosing the right words. Your notary will record your last wishes in accordance with the law and your instructions. Furthermore, the advice given to you by your notary will help you to remember everything and plan for all possibilities, which will greatly simplify the task of the person(s) responsible for the liquidation of your succession.
Do not prepare your will by yourself. Certain grounds for nullity could apply. A poorly written will could have very serious consequences for your family and friends. It could also be declared invalid because it runs contrary to the law or because it is hard to interpret. If your current will is not notarial, it is in your interest to have it examined by a notary to ensure that it is complete.
» It provides better protection for your loved ones.
Your notary knows the law and may suggest that you include several provisions in your will to provide better protection for your loved ones. This way, your notary can make the property you leave behind exempt from seizure, such that your heirs will be better protected should they find themselves in a poor financial position. Your notary can also explain the advantages and disadvantages of including life insurance proceeds in the legacies of your will.
Your notary can help you draft a clause that allows you to name a tutor to take care of your children and look out for their interests in the event of the death of both parents.
Finally, your notary can advise you on the terms and conditions for releasing property to your heirs, thus avoiding a situation in which a person who is still young and liable to mismanage this new-found wealth is able to access it before reaching a certain age or prior to the existence of specific circumstances.
» It lets you save on taxes.
A notarial will allows you to set up income tax planning that could save your heirs a great deal of money. Although succession tax no longer exists in Quebec, the fact remains that the succession of the deceased must file a final income tax return. This is where the tax authorities come knocking at the door, if you haven't planned for proper allocation and delivery of your property.
» It can never be lost or altered.
Another advantage of a notarial will is that the original is kept in a safe place by the notary. Your will is thus protected from falsification or destruction by someone who is upset with the provisions it contains. It is also protected against loss.
Your notarial will is listed in the Register of Wills kept by the Chambre des notaires. The Register contains your name and other information enabling your family and friends to find your final will and testament after your death. The Register cannot compromise the confidentiality of your will, since it only contains information on its existence, not its content. Only after your death will the Register provide your family with the name of the notary who possesses your will. You are therefore guaranteed that the person entrusted with settling your succession will be able to locate your will.
Preparing a notarial will to protect your loved ones is an act of love.
Notaries: The Best People to Advise Liquidators on the Settlement of a Succession.
The liquidation of a succession is a complicated operation. The law imposes strict procedures for liquidators to fulfil their obligations. Furthermore, the liquidation of a succession necessitates the preparation of an inventory of the deceased's property as well as the handling of important fiscal matters: filing the deceased's income tax returns, making the tax elections that could prove beneficial to the heirs, requesting the certificates authorizing the release of property. These measures are important and must be respected by the liquidator (executor), otherwise the heirs could suffer prejudice and the liquidator could be subject to various legal sanctions.
From a legal standpoint, marriage establishes a special economic relationship between spouses to provide suitable protection for the less financially secure spouse. In certain cases, failure to consult a notary may have serious consequences.
A succession may be in deficit. In certain circumstances, the heirs could also be held personally liable for debts held by the succession in excess of the property they receive. It is therefore sometimes advisable to renounce the inheritance. Unfortunately, it is usually impossible to renounce an inheritance once it has been accepted, even if the acceptance is merely implied. For example, all it takes is for you to register the deceased's car in your name or transfer the balance of one of the deceased's bank accounts into your own. In the eyes of the law, you would, in all probability, be deemed to have accepted inheritance of an insolvent succession and be held personally liable for the payment of all debts—not a very reassuring thought.
If you are responsible for the liquidation of a succession, your notary can help you make the right decisions. Under the Civil Code, it is the duty of a liquidator to act as a reasonable person, and a reasonable person must seek legal advice. Nothing must be left to chance. For peace of mind, consult your notary.