A will is a legal document in which you indicate how to divide your assets and money upon your death. It mainly answers these two questions: Who will inherit what and how much?
Note: The following advice applies mainly to current laws in effect in the province of Quebec.
1. Plan the right moment to write your will
In Quebec, you must be at least 18 years old to make a will. Most young people do not think about creating this precious document. However, too many people put off this task until it is too late, risking dying without a will. Yet planning your estate is not a question of age.
You must write a will as soon as you have children or assets, even if their value is modest. Your estate will be less complicated for your loved ones to manage and, above all, you will be the one to decide the way in which your wealth will be shared.
If you die without a will, only the members of your family (e.g., a spouse, children, parents, brothers and sisters) can inherit your wealth. Your estate would be divided according to pre-established allocations outlined by the law but may not necessarily reflect your wishes.
Remember that, in Quebec, when it comes to estate planning, common-law partnerships are not recognized by the law. If one of the two partners dies without a will, the other will have nothing. You must have a will in order for your partner to inherit something.
You may even have to repeat the will-writing process more than once throughout your life after buying a home, having a child or grandchild, starting a business, a separation or divorce, retirement, etc. A will written many years ago could become obsolete and need to be revised at every stage of your life.
2. Make an inventory of your property
Before preparing your will, draw up a list of all of your property: real estate, bank accounts, retirement plans, investments, vehicles, artwork, jewellery and other personal assets. You can bequeath everything that belongs to you except for the portion of family wealth that goes to your surviving spouse, if you are married or in a civil union.
If you have debts at the time of your death, they will be repaid using assets from your estate. The rest of your property will then be used to pay funeral costs and, if needed, estate taxes. Finally, your heirs will divide what remains.
3. Decide what you will leave to whom
You can leave your assets and property to the people and causes that are important to you; there is no obligation or precise allocation to follow. It’s up to you to decide based on your situation.
You can make a universal legacy, which means that you leave the whole of your assets to one or more people: “I leave all of my property to my wife, Marie.”
You can also leave a portion of your assets (half, a quarter, etc.) or a category of assets (furniture, real estate, artwork, etc.) to different people. In legal jargon, it is a legacy by universal title. For example, you could leave your house and furniture to your common-law partner and the rest of your property to your two children.
Finally, you can leave specific property to certain individuals, which is known as a legacy by particular title. For example, you can leave an antique armoire to your nephew, a sum of money to your spouse or an amount to a charity.
4. Choose your executor and a guardian for your children
A will also serves as a way to name one or more executors, i.e., a person or people you trust who will be responsible for managing your estate and distributing your assets according to your wishes. If you do not name an executor, your heirs will become executors.
Do you have children who are minors? Designating a guardian in your will to look after your children until they’ve reached the age of majority is a good precaution. This person will take on this role only if you are the last parent to die.
5. Choose the type of will you want
There are three types of wills recognized in the province of Quebec: notarized, holographic and witnessed.
A notarized will has many advantages. Firstly, the notary gives you advice adapted to your situation. They will help you reflect on your will and can point out things you would never have considered, such as what will happen to your children’s RESP upon your death. A notarized will ensures that you have a will that follows the law and is clearly written, therefore avoiding any issues with interpretation.
A notarized will is automatically registered in the Registers of Testamentary Dispositions and Mandates of the Chambre des notaires du Québec, and the original is stored in a safe place. That way, there is no risk of losing the will or of it being destroyed by someone with bad intentions. A notarized will is also difficult to contest.
The only disadvantage of a notarized will is that its price can vary between $250 and $500 (or more, if your situation is complicated). However, a notarized will can end up being less costly than the other types of wills that are obligated to undergo legal verification upon its holder’s death, which can be expensive.
A notarized will exists only in Quebec. If you live in another Canadian province or territory, you can have a holographic or witnessed will (the lawyer will often be the first witness). In British Columbia and Prince Edward Island, only a witnessed will is valid. Further, the minimum age required to write a will may vary from one province to another.
A holographic will is the simplest of the three: you simply have to lay out your wishes on paper. It is also free and does not require a witness. The document must be entirely handwritten and signed by you (without the use of a computer).
However, creating a will by yourself can carry risks. A holographic will may be lost or destroyed since it is not registered with the Chambre des notaires or the Barreau du Québec.
Additionally, because you won’t benefit from a legal expert’s advice, you may forget certain situations or use language that may be misinterpreted after your death. That is why it’s important to clearly express yourself and get straight to the point: “I leave all my property to X.” If you make a particular legacy to certain individuals, do not forget to indicate to whom you want to leave the rest of your possessions.
A witnessed will can be written alone or with the help of a lawyer, but it must be signed in front of two adult witnesses who will sign it after you. Avoid using one of your heirs as a witness. This person could be denied their inheritance, since beneficiaries of a will cannot act as witnesses.
A witnessed will can be handwritten or typed out on the computer. It may also be created online as a form that must be filled out on the computer and printed. In every case, only the paper version holds legal value. Each page must be signed or initialed by you and your witnesses, except if you write your entire will by hand.
By preparing your will, you are protecting your loved ones and ensuring that your final wishes are respected. Speak with an advisor about your will.