Whether you are 25 or 75, it’s always a good time to think about making your will. A will allows you to express your wishes and make essential decisions for after you’re gone.
This article explains why and how to prepare your will, and the three types of wills recognized in Quebec.
Wills: The Essentials |
Who can make a will?
To make a will, a person must be
- 18 years old, and
- of sound mind, which means the person understands the nature of the document and its consequences.
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Did you know? A person under 18 can make a will if:
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Why should I make a will?
A will lets you make decisions ahead of time, decisions that will be carried out after your death and will have a great impact on your loved ones. For example:
- Who will inherit from you?
- How will your property be divided among these people?
- Who will be your liquidator (person who will distribute your property, formerly called an executor)?
- If you have minor children, who will take care of them?
If you die without a will, the rules in the law will apply. These legal rules may not reflect your wishes. Here are some examples of these legal rules:
- If you never formally divorced your ex-spouse, that person has a right to inherit and will get part of your property.
- If you have a partner but are not married and have no children, that person will not have a right to anything.
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Important: Only wishes that are possible and feasible will be respected. Your wishes may be limited for reasons of common sense or public order. For examples of clauses that cannot be respected, see the FAQ section, below. |
What’s in a will?
Most people think a will is only used to divide up property after death: the house to the spouse, the car to eldest child, the lawnmower to the brother-in-law, etc.
This is true, but your will can also contain a lot of other directions for your loved ones when you are no longer there. For example, it can:
- name a “liquidator” – the person who will settle your estate – and a replacement for this person
- extend the liquidator’s powers beyond those automatically given by the law. For example, if you don’t give the liquidator the power to sell your house, they will have to get permission from the heirs.
- if the liquidator will be paid, specify how they will be paid
- create legal mechanisms, such as a trust, to minimize taxes owing on your estate
- name a tutor (guardian) for your children under 18
- state wishes regarding your funeral
How do you make a will?
Three types are recognized in Quebec.
To be valid, each type of will must follow certain rules.
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Did you know? Whichever type of will you choose, all three are equal when it comes to making sure your wishes are respected. |
Here are the three types of wills you can make.
The notarial will
As the name suggests, a notarial will is written by a notary.
Notaries can write a will that follows the legal rules, reflects your wishes, and takes into account your family and financial situation.
The main rules for it to be valid
- A notarial will must be written in English or French.
- The will must indicate the place and date it was made.
- You must sign it before the notary and a witness. Sometimes, two witnesses are necessary
Advantages
Disadvantages
- They are harder to challenge. This is because a notary has made sure of your identity and that you agreed to the will. The notary also makes sure the will follows all the legal rules.
- You must pay the notary’s professional fees – typically several hundred dollars.
- They don’t have to be probated after you die. Probated means to be made official. This is done in court or by a notary. The fees for probating a will are typically much higher than the cost of making a notarial will.
- They are easy to find after your death because the notary keeps the original and files it in the Registre des dispositions testamentaires de la Chambre des notaires du Québec (a registry kept by the notaries association of Quebec).
To learn more, see our video What Type of Will Should I Make? The Notarial Will
The will made in the presence of witnesses
As the name suggests, this kind of will must be signed in front of two witnesses together at the same time.
If a lawyer prepares your will, it will be this kind of will.
Main rules for it to be valid
- Your will must be signed before two witnesses, who must both be present at the signing.
- Anyone 18 or over can be a witness, so long as they do not stand to benefit from the will.
- The witnesses must:
- Confirm that it is your will and your signature, and
- sign the will after you.
- It can be handwritten, typed on a typewriter, or written on a computer.
- If it is written on a computer, only the printed and signed version will be legally valid.
- If it is written on a computer or handwritten by someone other than you, you must ensure that your initials or your signature — and those of the witnesses — appear on each page.
- You don’t have to read the will in front of the witnesses. But if you can’t read it yourself, for example, because you have vision problems, the will must be read to you by one of the witnesses in the presence of the other.
Some helpful tips
- If you make this type of will, it’s a good idea to let your loved ones know where you are keeping it.
- A safe place is better than the bottom of a drawer. But it’s not a good idea to put it in a safety deposit box, as your heirs will need the original of your will to open the box once you are gone.
- Even though it’s not legally required to mention the date and place the will was signed:
- It could be good to mention the place, if the will was made outside of Quebec
- It’s important to mention the date if you made any previous wills. If you made more than one will, and did not cancel any, all remain legally valid. In case of incompatibility, however, the most recent one will be followed.
- To avoid confusion when making a new will, it’s good to make sure it covers all your wishes and that you cancel all previous wills by including a sentence like: “This will revokes all previous wills I have made”.
Advantages
Disadvantages
- The biggest advantage is the cost. This kind of will can be free if you don’t use a lawyer. But if you do use a lawyer, there will be fees.
- This type of will must be probated after you die. Probate means to make official. This involves costs and takes time. The costs to probate a will are typically much higher than those for a legal professional to prepare a will.
- You can ask a lawyer to register the will in the Registre des dispositions testamentaires du Barreau du Québec (bar of Quebec registry). It will then be easier to trace.
- The will can be lost, destroyed, or damaged.
- If you do this kind of will yourself, you won’t get legal advice. Advice can help you think about situations you haven’t anticipated.
To learn more, see our video What Type of Will Should I Make? The Will Before Two Witnesses
The holograph will
A holograph will must be written entirely by hand by you and you must sign it.
Main rules for it to be valid
- It must be written by hand, and not on a computer or using another mechanical means. Disabled people can write using their mouths or feet.
- It must be signed by the person making the will.
Some helpful tips
- Even if you don’t need witnesses for this kind of will, it is a good idea to tell your loved ones where you plan to keep the will.
- A safe place is preferable to the bottom of a drawer. But don’t put your will in a safety deposit box! Your heirs will need your original will to open the box once you are gone.
- Even though it’s not legally required to mention the date and place the will was signed:
- It could be good to mention the place, if the will was made outside Quebec
- It’s important to mention the date if you made any previous wills. If you made more than one will, and did not cancel any, all remain legally valid. In case of incompatibility, however, the most recent one will be followed.
- To avoid confusion when making a new will, it’s good to make sure it covers all your wishes and that you cancel all previous wills by including a sentence like: “This will revokes all previous wills I have made”.
Advantages
Disadvantages
- Can be made anywhere at any time
- This type of will must be probated after you die. Probate means to make official. This involves costs and takes time. The costs to probate a will are typically much higher than those for a legal professional to prepare a will.
- Does not cost anything – no professional fees to pay
- The will can be lost, destroyed, or damaged.
- If you do this kind of will yourself, you don’t get legal advice. Advice can help you think about situations you haven’t anticipated.
To learn more, see our video What Type of Will Should I Make? The Holograph Will
FAQ
Can a couple make one will together?
No. Each person must make a will.
In Quebec, people 18 or older — and people under 18 who have been emancipated – are free to leave their property to whoever they want. They can also make changes to their wills at any time, as long as they are of sound mind.
But there is one exception to this rule: a statement in a marriage contract made by a notary. See the next question.
I signed a marriage contract that says the “property goes to the last surviving person.” Should I make a will?
This kind of statement in a marriage contract made by a notary is valid and lets you leave your property to your spouse when you die. But, it’s still a good idea to make a will.
In a will, you can include statements that you can’t have in a marriage contract. For example, you can say you are leaving property to someone other than your spouse, you can name someone to take care of any children under 18, and you can say how your liquidator must manage your children’s inheritance.
In certain situations, your spouse must agree in writing to let you leave certain property in your will. This is the case, for example, if you have left your spouse that property in a marriage contract and it is “irrevocable,” which means it can’t be changed.
I’ve heard that certain wills must be “probated” after a person’s death. What does this mean?
Holograph wills and wills made in the presence of witnesses have to be probated by a court or a notary when the person who made the will dies. They must be probated even if a lawyer made the will. Only notarial wills don’t have to be probated.
Probate is a request made to a court or a notary to confirm two things:
- that the will is the most recent one
- that it meets the legal requirements to be valid
This confirmation does not prevent future legal challenges about what the will says. Probate of a will only confirms that the will meets the conditions to be valid; it does not confirm the contents of the will.
The heirs can probate a will in two ways:
1. Probate by a Court
A request, called an application, must usually be presented to the Superior Court in the judicial district of the deceased’s place of residence. People entitled to inherit must be informed of the application and can take part when it is presented in court.
Many people ask a notary or a lawyer to handle the application, but others write and present the application themselves.
2. Probate by a Notary
Important! This does not transform the will into a notarial will.
The notary must inform anyone who will inherit about the probate of the will. Probate by a notary has the same effect as a probate by the Superior Court.
However, a notary cannot probate a will that is challenged. This could be the case, for example, if someone claims the will is fake.
To learn more, read our article Probate: Making a Non-Notarial Will Official.
Will everything written in my will be respected?
For the most part, yes.
Only last wishes that can be carried out will be respected. Generally, last wishes must make sense and not go against “public order” (decisions society considers unacceptable).
For example:
- A clause in a will cannot be enforced if the person benefitting refuses the gift or if the beneficiary has died before the testator.
- If a piece of property no longer exists or was destroyed, it cannot be given to anyone, and the heir will not get money instead.
- A person making a will cannot give something that does not belong to her.
- If a gift comes with an impossible or illegal condition, that condition is cancelled.
Examples of these kinds of conditions: “I leave $25,000 to Josette on condition that she does not get remarried,” or “I leave $5,000 to Pedro if he runs a marathon in two hours”.
Lastly, to protect the person making a will from abuse, gifts to certain people are automatically invalid. Here are some examples:
- a gift to the notary (or to the notary’s close family members) who made the will
- a gift to a witness present when the will was signed
- a gift to a member of a foster family of the person making the will, if it was made while the testator was still living with the foster family
- a gift to an employee of a health or social services institution if it was made when the testator was receiving care or services at that institution
How much does a will cost?
Notarial Will
For the person making the will:
It usually costs several hundred dollars for the Notary to prepare the will, keep an original, provide a certified copy, and register it. It can cost more depending on the circumstances.
For example, a tenant of an apartment who only owns a car and an RRSP and who wants to leave everything to her spouse will pay less than the owner of several businesses and second homes who wants to create trusts for many children and grandchildren.
For the heirs:
Since a notarial will doesn’t have to be probated after death, the heirs don’t have to pay anything to have it made official.
Holograph Will or Will in Front of Witnesses
For the person making the will:
Option 1: If you write the will yourself without the services of a lawyer, it does not cost anything to make the will.
Option 2: If you write the will yourself using a will kit (standard form) without the services of the legal professional, you will have to pay for the kit.
Option 3: If you want the advice of a lawyer before writing the will, or if you ask a lawyer to write it, you will have to pay the lawyer’s fees.
The lawyer’s fees will depend on how complicated your situation is and on the lawyer’s rate. The fees could be similar to a notary’s.
For the heirs:
These two kinds of wills must be probated at death by a notary or the court. This means the heirs must pay the probate fees out of the estate funds. The fees are around $1,500. Note that the probate process can take several weeks. See the question on will probation, above.