Canada is a federal state composed of ten (10) provinces, which has the exclusive jurisdiction to legislate in matters of private law within their respective territory. All Canada is governed by the Common Law of English origin, the sole exception being the Province of Québec, heir to French civil law and inspired by the Napoleonic Code.

Following the British conquest of New France, French-Canadians became subjects of the British crown. However, they remained attached to French law and obtained its continuing application under British rule. With time, certain more liberal principles of English law were integrated within the Province’s French-based law. During British colonial times, numerous notions of English succession law became part of Québec law and continued to evolve therein. This French law and these adopted principles of English law were first codified within the Civil Code of Lower-Canada in 1865. One import from English law in a particular note is the freedom to test, i.e. a person’s right to make a will so as to dispose of her possession as she wishes at the moment of her death. This freedom was initially absolute.

Québec Succession Law

In 1994, the Civil Code of Lower-Canada was replaced by the Civil Code of Québec (C.C.Q.). This reform led to the apparition of a few, but nonetheless important, derogations to the absolute freedom to test. Indeed, a person may still dispose of her possessions as she desires, but now subject to certain reserves regarding close kin. The law now provides a protection for the surviving spouse as well as the children, through the institution of the family patrimony and through the survival of the obligation to provide support. Despite these few restrictions created in recent years, the freedom to test remains an essential principle of Québec succession law.

A succession is governed by the laws of the deceased’s last domicile. It shall be opened in Québec, and Québec law shall find application, when the deceased was domiciled in this province at the time of his death. The validity of any will shall thus be appraised under Québec law. However, in the absence of a will, the partition of the succession is defined by law.

Intestate Successions

When the deceased has not collected his last will in a testament, the liquidation of the succession is governed by the Civil Code of Québec (hereinafter designated the “C. C. Q.”). Such successions are called intestate (without testament).

In such cases, the C. C. Q. provides the modalities for partitioning the deceased’s patrimony. The legal devolution of successions favours successors in function of their degree of relationship with the deceased. Only persons with ties of blood or of adoption with the deceased are concerned. The surviving married or civil union spouse can also claim rights to an intestate succession, as opposed to a common law spouse. Indeed, a common law spouse has no status as a legal heir under the C. C. Q. Thus, if a person desires her common law spouse to inherit, she must provide legacies in a will, so as to avoid the consequences of the legal devolution. If a person deceases without drafting a will, her succession shall be partitioned between her legal heirs (children or mother and father, brothers and sisters, etc.), as described by the table hereinafter.

The directive lines of the legal devolution of successions are highlighted in the following table. This table constitutes a brief overview of the patrimony partitioning executed under civil law. Only the governing principle is laid out, being understood that exceptions and particular cases may lead to a different partition. It is necessary to consult a notary or lawyer to obtain pertinent information for any specific case.

In an intestate succession, the law favours the deceased’s descendants. Indeed, when the spouse is also deceased or renounces the succession, the descendants receive the entirety of the succession. Moreover, even if the surviving spouse participates in the succession, more than half thereof devolves to the descendants.

If the deceased had no descendants, the partition shall be shared between the surviving spouse and the privileged ascendants (mother and father) or, failing which, the privileged collaterals (brothers and sisters). In both cases, the greater portion devolves to the spouse.

Rules Governing Testamentary Successions

In the partition of her patrimony, a person can easily set aside the legal devolution following through the exercise of her right to make a will. The principle of freedom to test is an essential aspect of property rights, which provide that a person may freely dispose of her property. Adopted by Québec law from English law, this principle is enshrined in Article 703 of the C. C. Q. Thus, a testator may make a will to transfer, by legacy, his property to whomever he desires, nigh without restriction.

However, not all people may make a will. Indeed, a valid will requires that the testator be legally capable at the moment he makes his will. If such is the case, the will shall remain valid even if the testator eventually becomes incapable at the time of his death. Under this rule, the will of a minor is deemed null of absolute nullity. The will of a person of full age under protective supervision is also deemed null, but of relative nullity only-its validity can solely be contested by those who have a legitimate interest in doing so.

Three (3) forms of will are recognized under Québec law :

Notarial Will : Made before a notary and at least one (1) witness. This form of will is governed by strict formal requirements executed before a notary acting in his capacity as a public officer. As a result, it constitutes a nigh-incontrovertible proof of the testator’s intention. This document is very difficult to contest. It is deemed an authentic act, exempted from the formalities of probate it. Its veracity need not be verified as it is established by its very nature.

Holograph Will : Handwritten entirely by the testator and signed by him, with no other formal requirements. Thus, the conditions of form for this document are extremely simple. The will must unequivocal of the testator’s intention. This is a condition to the validity of this will. This subjective quality shall be appreciated by the judge during the probate of the will.

Will Made in the Presence of Witnesses : So-called “will following the form derived from the laws of England”, must be signed by the testator before a minimum of two (2) witnesses of full legal age, which must also sign the will. It is not required that the will be written by the testator himself; it can be drafted by another person. The essential condition is that the testator declares in the presence of the witnesses that the document effectively constitutes his will.

If it does not respect the formal requirements provided by the law, a will shall be struck null.

In Québec, a will made abroad can be declared valid if it respects the formal requirements either :

of the law of where the will was made;

of the law of the state of the testator’s nationality;

of the law of the testator’s domicile;

And this either:

at the time of the will was made;

at the time of the testator’s death.

Modification & Revocation of Wills

A will may be modified or revoked at any moment before the testator’s death, expressly or tacitly, or even by right. The sole exceptions to this rule are gifts mortis causa made by contract of marriage. Indeed, as long as the parties remain married, a mortis causa gift may not be revoked by the donor, unless the donee grants consent and the revocation is set down in a notarial act.

After you review your will to see if it still reflects your wishes and situation, you might realize that you need to make some changes.

Changes to a will are made in a document called a codicil. A codicil is appropriate for minor changes to an existing will. Minor changes include naming a new liquidator, modifying the liquidator’s powers or naming another person to be responsible for any children under 18 after you die.

Changes to a will must meet the same conditions as a will. In other words, the changes must be handwritten, made in the presence of witnesses or by a notary. But you can make the changes in a different way from your original will. For example, the codicil can be handwritten, but the will done by a notary. However, if your change is holographic or made in the presence of witnesses, it must be validated (“homologated”) by the court or a notary after you die, which involves costs and delays.

You can make changes at any time, as long as you have the capacity to do this in the legal sense of the word. This means you must have full control of your mental abilities. If you are declared incapable, you are no longer be allowed to make a will, change it or cancel it.

Changing Your Will on Your Own - Not So Simple

When you change to your will, you should also confirm which parts of the will you don’t want to change. This will avoid confusion later on.

Be very careful when changing your will without consulting a legal professional. Sometimes, “homemade" changes cause problems in how your will is interpreted, and this can lead to arguments among your heirs.

A change that seems clear to you might not be clear to other people. For example, it might be hard to tell whether your change is just a change or actually a whole new will.

Making Major Changes to Your Will

There are other things to consider if you want to make major changes to your will, for example, if you want to name new heirs or change the share of each heir. In these cases, it is often better to cancel your will and make a new one since the changes involve new wishes.

You can still use a codicil to make major changes, but keep in mind that when you die, your heirs will see both your original will and the changes. If you make a new will instead of changing your will, they will not see your changes. This will help prevent arguments in your family and among your heirs.

A legal professional can advise you about the best solution and prepare a change to your will or a brand new will.

Patrimony Repartition by Will and its Consequences for Heirs and Legatees

In his will, a testator can bequeath, at his discretion, the property within his patrimony. He can freely bequeath any property to any persons he chooses. A disposition as to the transfer of property contained in a will is called a legacy. There are three (3) categories of legacies:

Universal Legacy (art. 732 C. C. Q.) : A legacy entitling one or several persons to take the entire succession, excepting any property being bequeathed by particular title. Example: “I leave all my property to my children, in equal part between themselves, and establish them as my sole universal legatees in absolute ownership.”

Legacy by General Title (art. 733 C. C. Q.) : A legacy entitling one or several person to take the ownership of an aliquot share of the succession or a dismemberment of the right of ownership of the whole or of an aliquot share of the succession. Example: “I leave to my daughter Claire all the immovable property I own at the time of my death.”

Legacy by Particular Title (art. 732 C. C. Q.) : Any legacy that is neither an universal legacy or a a legacy by universal title. Example: “I leave by particular title to my son Anthony my immovable property located at (city, street, number), free of all hypothec and of all other debts.”

A legatee (be he universal, by universal title, or by particular title) is entitled to the bequeathed property in the state it was in at the time of death. He is also entitled to any accessory property.

A universal legacy and a legacy by universal title create obligations for the legatee who accepts the legacy. Indeed, he becomes responsible of the debts relative to the property. Universal legatees and legatees by universal title receive the property but must also assume the attending debts (hypothec, credit, etc.).

On the contrary, a legatee by particular title acquires the bequeathed property free of debts unless otherwise provided by the will. When a legacy designates a given property, to be left to a given person (as an example: “I leave my house located at 33 Maple St. to my daughter Claire”), that property shall be transferred unburdened by the hypothec. The universal legatees shall then be responsible of the hypothec.

A legacy lapses and becomes invalid when the legatee dies before the legator, when the legatee is unworthy to receive it, or when he refuses it.

Restrictions to the Freedom to Test

Although at first glance the freedom to test appears absolute in Québec, some restrictions were imposed through the years in order to protect the family patrimony and to ensure the financial support of the family in case of death. The three (3) types of restrictions found in Québec civil law are as the following:

The survival of the obligation to provide support;

The partition of the family patrimony;

The compensatory allowance.

1) Survival of the Obligation to Provide Support

Because an obligation to provide support survives the death of the provider, the person to whom it is owed may claim it from the succession. The following persons may claim support: a spouse, an ex-spouse, and parents of the first degree in direct line (mother, father, and children of the deceased). Any sums granted as support are deducted from the succession before its partition. However, it must be noted that there are limits to the amounts that may be received from the succession as support.

Example : Mark is divorced from Claire. They had two children together, Mary and John. As part of the divorce judgment, the tribunal ordered Mark to pay an alimentary pension as support to Claire and the two children. After a few years, Mark remarries with Suzan; their son Albert is born. Still a few years later, Mark dies.

Claire and her two children Mary and John may claim from Mark’s succession the alimentary pension due to them. Suzan and Albert also hold a claim for support against the succession. Once their respective claims are paid from the succession, the remaining patrimony is partitioned as provided by Albert’s will or, failing which, by the legal devolution.

2) Family Patrimony

In 1989, the new institution of the family patrimony was incorporated in Québec civil law. This concept aims to compensate for economical inequalities between the man and the woman in a marriage. Certain specific properties, owned by either or both spouses, constitute the family patrimony. Roughly summarized, this limitative list includes the following properties: the residences of the family, the movable property with which they are furnished and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan.

Both spouses retain an equal right to the net value of the family patrimony, irrespective of the actual ownership of the properties therein. At the dissolution of the marriage (including following one spouse’s death), the net value of the family patrimony is partitioned between the spouses.

The dispositions of the C. C. Q. governing the partition of the family patrimony are of public order, and the spouses may not renounce to that partition as part of their contract of marriage or of their will. It must be noted that the family patrimony exists only within a marriage or a civil union, and thus does not apply to a couple in a common law relationship.

3) Compensatory Allowance

A third restriction is the compensatory allowance, which is payable to one spouse by the other, at the Court’s order following the dissolution of a marriage or civil union (including by death), as a compensation for one spouse’s contribution, in property or services, to the enrichment of the other spouse’s patrimony. This payment may be an award of a sum of money, payable in cash or by instalment, or an award of rights in certain property.

Example: Betty has worked for Mark’s business throughout their married life, but has never received pay for that work. Upon Mark’s death, Betty could claim a compensatory allowance from Mark’s succession, inasmuch as her un-remunerated work has contributed to the success of Mark’s business, and thus to the enrichment of his patrimony.

A spouse claiming a compensatory allowance has the burden of proof for her contribution to the enrichment of her spouse’s patrimony. The tribunal appraising the allowance to be paid takes into account the situation globally, including the partition of the family patrimony. A claim to a compensatory allowance becomes prescribed one (1) year after the dissolution of the marriage or civil union.

Key Principles of Québec Succession Law

While the deceased had the full faculty to choose the manner in which his succession will devolve, certain legal principles govern to the partition process itself. These rules apply to all parties to the succession as well as all third parties, regardless of whether the deceased left a will or not.

One such fundamental principle in Québec law is that the heirs’ personal liability remains limited regarding the deceased’s debts, even when they accept the succession. It is indeed the succession itself that is directly responsible for the debts.

Another such principle of Québec succession law is the right of option. An heir has the free choice of accepting or refusing the succession. If he refuses, he is freed from any liability. In such a case, the descendants of that heir lose all rights in the succession. (Indeed, as will be further discussed hereinafter, an heir’s descendants may receive that heir’s rights in the succession, when he becomes dies or unworthy to inherit.)

Lastly, the third principle of Québec succession law that will be exposed concerns the fiscal questions regarding successions. As opposed to many states, there exists no special tax on successions in Québec. Any other outstanding fiscal debts of the succession are paid directly by the succession before partition, in the same fashion as debts of other natures; the heirs are not personally responsible for paying such taxes.

1) Limited Liability of the Heirs

The limited liability of the heirs and the separate nature of patrimonies are important ground rules with significant consequences. The limited liability rule provides that an heir that accepts the succession is only held liable for the debts up to the value of the succession’s property. The succession’s assets thus serve to pay the debts. If the assets are insufficient to cover the debts, the heir shall not be held personally accountable and could not be forced to pay these debts from his own patrimony. The separation of patrimonies is the corollary of that first ground rule: until such time as the succession has been liquidated, its patrimony and those of the heirs remain distinct.

2) Right of Option

A person holding a potential right to inherit is designated a successor. A successor is called upon to inherit, but may exercise his right of option: he may choose to accept or to renounce the succession. If he accepts, whether tacitly, expressly, or by law, the successor becomes an heir. Acceptation of a succession may not be revoked. Should he renounce the succession, he is deemed never to have been a successor. As of that moment, he is not responsible for the deceased’s debts.

In certain cases, the C. C. Q. makes provisions for “forced acceptation” of the succession. Notably, such is the case when the successor would mingle the property of the succession with his own property, or when he neglects to act following the liquidator’s failure to make the inventory of the succession. Moreover, in these cases, the law provides that the heir may exceptionally be held liable for the succession’s debts beyond the value of the property he receives.

However, the creditors of a person renouncing the succession, to the detriment of their rights, have a remedy at their disposal. Within one (1) year of the renunciation, the creditors may apply to the court to declare that the renunciation may not be set up against them, and accept the succession in lieu of their debtor. In such a case, this acceptation has effect only in favour of the creditors who applied for it, and only up to the amount of their claim. It has no effect in favour of the person who renounced.

Furthermore, Québec civil law recognizes the principle of representation in an intestate or testamentary succession. This principle allows a relative to be called to a succession which his ascendant would have taken but is unable to take himself, having deceased previously or having been declared unworthy.

Example: John has two children, Carol and Stephen. Stephen deceases some time before his father John, leaving his daughter Christine. At the time of her father John’s death, Caroline is still alive and a mother of two sons: Julian and Max.

The application of the principle of representation allows the descendant (Christine) to take the part of the succession that would have devolved to her ascendant (Stephen) if he had not died before John.

There is no limit, in term of degree, to representation in the direct line of descent. Representation does not take place in favour of ascendants. However, a renunciation to the succession by a successor bars any possibility of representation for his descendants. A testator may also prevent representation for his heirs by an express stipulation to this effect in his will.

Example :

Paul has four (4) children: Mark, Sylvia, Margot, and George.

Mark is the father of Suzan.

Sylvia died in the same car accident as her two children.

William and Mary are Sylvia’s grandchildren.

Margot is single and has no child.

George’s only surviving descendant is his great-granddaughter Kathy.

Furthermore, George has been declared unworthy to inherit from his father because he destroyed Paul’s will.

Called to the succession are: Mark, William & Mary (as representing Sylvia), Margot, and Kathy (as representing George).

As Paul had four (4) children, the succession is partitioned in four quarters. Mark and Margot both receive a part equal to 1/4th of the succession. William and Mary share equally between themselves the part that would have devolved to the ascendant they represent, Sylvia. They thus each receive a part equal to 1/8th of the succession. As George has been declared legally unworthy to succeed following his destruction of Paul’s will, representation allows George’s great-granddaughter Kathy to claim his 1/4th part of the succession. In this instance, representation has not been stopped for any descendant by a successor renouncing the succession.

3) Fiscal Implications

In Québec, the heirs do not pay, strictly speaking, taxes on the succession’s estate. Indeed, when the heirs receive their inheritance, it is already net of taxes. In fact, the liquidator pays the deceased’s fiscal obligations from the succession’s assets, before the partition is executed. The underlying fiscal interpretation is as follows: the deceased is deemed to have disposed of his property at the time of his death. Thus, the deceased shall be taxed on the capital gain realized following this (fictive) disposition of assets. Capital gain is calculated as the difference between an asset’s value at the time of the disposition minus its value at the time of acquisition. 50% of the capital gain is added to the deceased’s other revenues for the year; the succession is taxed based upon that total income.

The liquidator is responsible for paying the income tax owed by the deceased. This constitutes an important responsibility, as the liquidator may be held personally liable for any outstanding fiscal debts. Hence, it is strongly recommended that the liquidator obtain a certificate from the fiscal authorities confirming that all of the deceased’s fiscal obligations have been paid in full.

It has been stated above that the deceased’s income tax must be paid from the succession’s assets before its partition to the heirs. When the total worth of the succession is not very high, this process should be relatively straightforward. However, when the deceased possessed an estate of high value, the payment of the fiscal debts from the succession’s assets can become problematic. As a case in point, take the following example:

The deceased held the shares to the family business. Through the years, these shares have increased in value by $5,000,000. It will be hard for the deceased’s heirs to take up the family business, knowing that the succession must pay the income tax levied against the $5,000,000 capital gain. In such a case, it likely will be required that the family business be sold, so as to pay the income tax.

To avoid situations such as the above, it is high recommended to plan one’s succession so as to diminish the fiscal consequences of one’s death.

One of most frequent method of resolving the problematic surrounding the payment of the capital gain tax with the succession’s assets is to create an estate freeze. This relatively simple process consists in the transfer of the testator’s assets within his lifetime. To continue the preceding example:

The deceased could have transferred (sold) his shares of the business to his children a few years before his retirement. Thus, by selling the shares, the father can benefit from a retirement income, while by acquiring the shares before their father’s death, the children can continue to operate the family business after their father’s death without concern for the payment of the capital gain tax on their inheritance. Furthermore, by selling his shares at an earlier date, the father pays less income tax for the sale, as the capital gain realized at that time is lower.

Settling an Estate

In Quebec law, the legal term for the estate of the person who died is “succession”. The legal term for settling an estate is “liquidation”. The person responsible for settling an estate is called a “liquidator”. The person who died is sometimes called the “deceased”.

Main Steps in Settling an Estate :

When a person dies, someone must settle that person’s affairs. The person who settles these affairs is commonly called the executor. But the official term in Quebec law is liquidator.
The property of a dead person, plus amounts owed to or owed by that person, are often called the "estate." But the official term in Quebec law for an estate is “succession.”

The liquidator must follow certain steps when settling an estate, and manage the deceased’s property in the interest of the people who will inherit.

This article will help liquidators with this process, which is sometimes long and complex.

Step 1 : Get proof of death.

The death of a person can be proved by a "copy of an act of death" or a death certificate.The Directeur de l’état civil (registrar of civil status) of Quebec can provide these documents.The liquidator will need one or both of these documents, depending on the information requested by the people the liquidator will have to deal with.

Step 2 : Do a will search.
The liquidator must do a search to find the last will of the person who died.

Two separate searches must be done: first, a search of the registry of wills of the Chambre des notaires du Québec (professional order for notaries) and second, a search of the registry of wills of the Barreau du Québec (professional order for lawyers – website in French only).

The liquidator must also look through the deceased’s papers for a will not made by a notary or a lawyer (that is, a holograph will or a will made in front of witnesses.) If the deceased made more than one will, the liquidator must use the most recent will to settle the estate. A search of the deceased’s papers is necessary even if a will was found in one of the registries of wills.

The liquidator must also check whether the deceased had a marriage contract or a contract of civil union. If there is one, the liquidator must check whether the contract contained a gift to take effect when the deceased dies (for example, a surviving spouse clause).

If the liquidator doesn’t find a will or a gift to take effect on death, the law decides who inherits the deceased’s property.

Step 3 : Probate wills not made by a notary.

If the will is a holograph will, or a will made in front of witnesses or a lawyer, it must be probated.

Probate is a procedure done by a court or a notary to confirm that the document is the deceased’s last will and that it follows all legal requirements.

To learn more, read our article Probate: Making a Non-Notarial Will Official.

Step 4 : Publish a notice of designation of liquidator.

The person who accepts to act as liquidator of an estate must publish a notice called a “notice of designation of liquidator.” It is published in the government register of personal and movable real rights (Website in french only), sometimes known by its abbreviation RDPRM. If the estate of the deceased has real estate (house, condo, commercial building, etc.), the liquidator must also publish a notice in the government land register (Registre foncier) (website in French only).

The purpose of these notices is to notify the public of the liquidator’s identity and right to manage the property belonging to the estate.

Step 5 : Identify and contact the heirs.

The liquidator must identify and contact all potential heirs. An heir is someone who accepts, or is legally obliged to accept, an estate or part of an estate.

The heirs are usually named in the will.

If there is no will, the law decides who inherits.

Step 6 : Close the deceased’s accounts and open an estate account.

When a person dies, financial institutions such as banks freeze the deceased’s accounts. So it’s best to close the accounts and transfer the money to a new account opened in the name of the estate.

The estate account is used for these things:

for money transferred from the deceased’s accounts

for money received after the death

to pay the deceased’s debts

To open an estate account, the liquidator needs certain documents, such as these : the certificate or act of death issued by the Directeur de l’état civil du Québec (registrar of civil status) results of the will search of the registry of wills of the Chambre des notaires and the Barreau du Québec a copy of the will

Step 7 : Make a list of the property and debts of the deceased and publish notices.

The liquidator must make an "inventory" (list) of the deceased’s property (houses, cars, bank accounts, RRSPs, etc.) and debts (mortgage and other loans, bills, etc.). The liquidator signs the inventory in front of a notary or two witnesses.

The liquidator then publishes a notice called “closure of the inventory.” It is published in the register of personal and movable real rights (RDPRM) (Website in french only) and in a newspaper distributed in the area where the deceased was living at the time of death. The notice confirms that an inventory was made.

Important! Some people can claim amounts of money from the estate even though they are not named in the will. For example, the deceased’s married spouse might have a right to a compensatory allowance, and the children might be entitled to child support.

These amounts are debts of the estate. The liquidator must include them in the inventory of the deceased’s property and debts.

The liquidator can consult a notary or a lawyer to determine these amounts.

Did You Know? The liquidator can ask to not have to make an inventory. But not making an inventory can have some serious consequences. Consult a legal professional to learn more.

Step 8 : File tax returns and get tax certificates.

After death, both the deceased AND the estate are taxed. The liquidator must file these tax returns : the deceased’s federal and Quebec income tax returns for the year of death any income tax returns for previous years that the deceased did not file federal and Quebec income tax returns for the estate declaring all amounts received and paid out after the death.

These tax returns must be sent to the federal and provincial governments with the required notices and documents. The liquidator must make sure that any money owing is paid.

The liquidator must obtain the certificates authorizing the distribution of the property to the heirs. These tax certificates are proof that the deceased does not owe any money to either government.

The certificate issued by the federal government is called a Clearance Certificate. The certificate issued by the Quebec government is called a Certificate Authorizing the Distribution of Property.

Step 9 : Pay the debts.

When it’s time to pay amounts owed, one of three situations can arise:

1. There’s enough money in the estate to pay all amounts owed.

If so, the liquidator must pay the debts of the deceased (e.g., electricity bills, mortgage loans, taxes), the debts of the estate (e.g., funeral expenses, notarial fees, taxes), and the property the deceased clearly identified and left to a specific person (e.g., “I leave $5,000 to my friend Peter”).

2. There is not enough money in the estate to pay all amounts owed, but there is enough property.

In this case, the liquidator can sell the estate property to pay the amounts owed after getting any permission needed.

3. There is not enough money or property to cover all amounts owed.

In this situation, the liquidator must wait before paying any amounts owed. It is strongly recommended to consult a notary or a lawyer.

Step 10 : Give a final report to the heirs and distribute the property.

The liquidator gives the heirs a final report, officially called a “final account.” This is a report by the liquidator that tells the heirs what was left in the estate after paying all amounts owed. It also explains what went on during the liquidation.

The liquidator can include a partition proposal with the final account. A partition proposal is a plan for how the property left in the estate will be divided among the heirs. The heirs are free to accept or refuse the proposal.

If they accept, the liquidator divides the remaining property according to the proposal and is released from further duties.

If they refuse the final account and the partition proposal, the matter must be brought before the court.

Step 11 : Publish a notice confirming the estate has been settled.

Once all the property has been distributed, the liquidator publishes a notice of closure confirming the estate has been settled. The notice is published in the register of personal and movable real rights (RDPRM).

Does a liquidator have to follow all the steps in liquidating a succession?

Yes. The purpose of this rule is to protect the liquidator and the heirs: if they properly take all the steps, they will not be held personally responsible for the debts of the deceased.(Debts means money owed.)

However, the heirs can all agree together to let the liquidator can skip some steps, for example, making a list of the property of the deceased. (An heir is someone who accepts, or is legally obliged to accept, a succession or part of a succession.)

But if the heirs agree to let the liquidator skip steps, they will be personally responsible for the debts of the succession, even those they don't know about (for example, money borrowed by a grandfather who was a big spender)!

Who do have to contact if I'm liquidating a succession?

You have to identify and contact all possible heirs. They are named in the will or, if there is no will, the law says who can inherit.

Once the heirs are identified, you must call them in. The law does not specify any particular way of doing this. If you want to be able to prove that they were properly notified, you can create a written notice, deliver it yourself, and get a signature showing the notice was received. You can also send a written notice by registered mail.

As liquidator, do you have to give a copy of the will to anyone who asks for a copy?

If an heir asks for a copy of the will, you don’t have to give the heir a copy of the will, or a copy of the passage in the will mentioning that heir. But an heir or a person with an interest (for example, a creditor of the deceased) can get a copy of the will from the notary or court clerk who has the will. So it’s best to contact the person wanting a copy of the will or the part of the will that concerns him. This avoids conflict and delays.

The same applies to anyone who are not named in the will but who might have inherited if there had been no will. For example, in his will, Germain left all his properly to his four children, except for his son Louis. The notary or court clerk must give a copy of the will to all children who request it, even to Louis.

What if the heirs are children under 18?

In the liquidation of a succession, a minor child (child under 18) is represented by a tutor.

When a minor child inherits a succession, an inventory of the deceased's property must be made to ensure that the succession is solvent. Solvent means having more assets (property, money, etc.) than debts.

A minor child can never say that the liquidator can skip making an inventory. This rule protects the minor, even though a minor can never be held responsible for the deceased's debts beyond the value of the minor’s inheritance.

Once the liquidation is completed, the minor's share must be given to the minor’s tutor.

As liquidator, who do I have to notify of the death?

You have to notify any organization that paid benefits to the deceased. For example, this could include the deceased's employer, the Retraite Québec (Quebec pension plan) or the Régie de l’assurance-maladie du Québec (medicare).

You also have to notify any companies that provided services to the deceased (e.g., phone, electricity, insurance, investments, credit cards).
Sometimes you have to supply documents to these organizations, government bodies or companies. For example, you will have to return the deceased's passport, if still valid, to Passport Canada, along with a copy of the death certificate.

Find out from each organization what procedures you must follow and what documents you must provide.

Here are a few tips :

Send a change of address to Canada Post so that mail addressed to the deceased will now be sent directly to you.

Destroy all the deceased's credit cards or return them to the issuing company, depending on their policies. This helps prevent fraud and identity theft.

When notifying government bodies or companies of the death, take the opportunity to ask for written confirmation of all money owed by the deceased. This will make your job easier when the time comes to make an inventory of the deceased’s assets and debts, and you will have documentation about any money owed.

Does the liquidator have to make an inventory (list) of the deceased's property?
Yes, the liquidator is legally required to make an inventory. Otherwise, the heirs might be responsible for the deceased's debts.

Making an inventory is an important step because it gives a picture of the following : an accurate description of the deceased's assets (money, property, etc.) and debts a realistic picture of the succession with an inventory, the heirs are able to accept or refuse the succession with full knowledge of the facts. For example, if the succession has more debts than assets, the heirs can refuse the succession and avoid having to pay the deceased's debts out of their own pockets.

Can the liquidator ever skip making an inventory?

The liquidator can be excused from making an inventory if all the people entitled to inherit agree.

How do you make an inventory?

The inventory must be made before a notary or in the presence of two witnesses who must sign the document the same time as the liquidator signs it. It is important to properly date the document.

The inventory must have this information : the official designation of any land and buildings (civic address, lotand cadastral numbers) and the values of this land and building.

There are two ways to calculate the value of land and buildings: according to the municipal evaluation or according to the market value (what the building or land would sell for now).

Generally, people opt for market value. If you can't establish it yourself, it can be a good idea to get help from a chartered appraiser (website in French only) or a local real estate broker.

a description of the deceased's property (cars, furniture, etc.) and the value of this property

Don't hesitate to use specialists to find out the value the property (e.g.,aspecialist called a numismatist will give you a good idea of the value of your mother's huge coin collection, a car dealer will tell you the value of your father's Toyota Camry, an antique dealer will appraise your grandmother's Louis-XVI armoire, etc.).

You don't have to list property worth less than $100 (clothing, personal items, jewelry, etc.).

A description of all cash on hand, bank accounts, stocks, bonds and other similar investments, Accurately state their values as at the date of death.

A list of documents of value

For example, the deceased's business records, client file records, etc.

Again, you must accurately state the value.

A list of debts

Accurately state their values as at the date of death. You must include this information : expenses paid by the liquidator(they must be reimbursed, for example, travel expenses, parking fees, etc.)

the liquidator's remuneration (salary), as determined by the deceased or by the heirs themselves fees of a notary or lawyer who helps the liquidator a balance sheet presenting all the assets and debts

I’ve heard that liquidator has to publish a notice confirming that the inventory was made. What is that all about?

The liquidator must publish a "closure of the inventory" notice in the Registre des droits personnels et réels mobiliers.

The actual inventory is not made public, only a notice stating that an inventory was made in liquidating the succession of a deceased person.

People with a legitimate interest (mainly heirs and creditors) are invited to consult the inventory at a specific location (for example, at the offices of a particular notary or lawyer).

The "closure of the inventory" notice must also be published in a newspaper distributed in the area of the deceased's last known address. This notice can be published in a mass-circulation daily (La Presse, the Journal de Montréal, The Gazette, etc.) or in a small local newspaper.

If I am a liquidator, what do I do with the deceased's property during the liquidation process?

You must take care of it and manage it until it is given to given to the heirs.

For example, you will have to keep an eye on the deceased's home, ensure that it is properly insured, renew the home insurance policy when it expires, maintain the property (e.g., mow the lawn, arrange for snow removal) and if necessary, see to urgent and necessary repairs to ensure that the property does not lose value. So, if the roof of the house is in bad shape and is leaking, you'll probably need to get it fixed.

Property that can perish must be sold before it perishes (spoils or disappears).

In other words, you must make sure that the succession does not lose value until it is liquidated.

Tip: No one been living in the house since the death? It would be wise to change the locks. Also, the insurance company might require that someone stay or visit the house. To avoid unpleasant surprises, check if the insurer has any specific requirements.

As liquidator, can I give an item to an heir before the end of the liquidation process?

As a general rule, no. If an heir gets something before the liquidation process is over, this amounts to accepting the succession … with all its debts! Therefore, if property is distributed before making sure that there are enough assets to pay all debts and all the “legacies by particular title”(leaving a particular thing to a particular person who is not an heir), you or the heirs will be responsible for paying the debts out of you own pockets!

However, items of sentimental value (clothes, personal papers, medals and diplomas) can be distributed to the heirs before the succession is fully liquidated.

Important! Some property might have not only sentimental value, but also a monetary value. Therefore, it’s best to wait until the liquidation process is over before giving it to an heir. You might even have to sell it if there isn't enough money to pay all the debts.

As a liquidator, how do I sell or give the deceased person's car to an heir?

Whether you sell it, or give it to an heir, you have to fill out a form called "Declaration of Transfer of Ownership following Death". You can get also get this form from the Société de l’assurance automobile du Québec (SAAQ).

When you have filled out and signed this form, you and the future owner must go to an SAAQ office to pay the fees connected with the sale. At the same time, the buyer will pay you the price you agreed on.

Here are a few tips :

Ask for a bank draft made out in the name of the succession. Remember that you are the custodian of the property of the succession, that the car is not yours, and that you will need the money to liquidate the succession.

Remember to ask the purchaser to sign a document confirming that the sale took place and indicating his or her contact numbers and address, and the price. Keep that document with the succession files.

As a liquidator, how do I sell or give any of the deceased's buildings or land to an heir?

Before you can transfer this kind of property of the deceased to a new owner, you first have to sign a Declaration of Transfer prepared by a notary. This declaration becomes a kind of deed of ownership of the succession.

Once the declaration of transfer is signed, you can sell or give the property on behalf of the succession.

If no liquidator was named, the heirs can sell the deceased's property. In these cases, all the heirs must sign the deed of sale.

What happens to the deceased person's debts?

The heirs cannot be responsible for the deceased's debts beyond the value of what they inherit. This is the rule except in these situations:

The legal liquidation rules were not followed (for example, an inventory was not made or the notice of the closing of the inventory was not published).

The heirs take succession property before the inventory is finished.

In some situations, a court might reduce the responsibility of the heirs if they acted with good intentions.

As liquidator, do I have to collect money owed to the deceased person?

Yes. As liquidator, your task is to recover anything owed to the deceased at the time of death. You have to deposit whatever you recover in the account you opened in the name of the succession.

The main amounts to be recovered for the succession are:

Life insurance (only if the beneficiaries of the insurance are mentioned in the policy as "my heirs", "my assigns" or "my succession").

NB: You will have to continue paying life insurance premiums until you file the claim for payment with the insurance company.

Work-related earnings: salary owed, vacation pay, reimbursement of expenses, life insurance payable to the succession under a group plan, etc.

Private pension plan benefits: If the deceased has a right to pension benefits under a private pension plan provided by an employer (even a former employer), including a federal or provincial plan for government employees, you will have to contact the plan's manager to mention the death and get information on how the deceased's relatives can collect any benefits.

Other amounts owed: You have to take steps (reminders, letters, legal proceedings, etc.) to recover other amounts owed to the deceased. It can be a good idea to consult a legal professional.

What happens if the person who died was married or in a civil union?

The liquidator has to take into account the rights of the surviving husband or wife:

Death ends marriage or a civil union. The liquidator therefore has to give the surviving spouse the money to which he or she is entitled under the rules on “family patrimony” and on “matrimonial regimes”.

The rules governing division of family patrimony are specific and complex. It is therefore highly recommended that you consult a notary or a lawyer.

The surviving spouse is also entitled to claim financial support for his or her needs.

The will might also say that the surviving spouse has a right to other amounts or property.

As liquidator, do I have to file tax returns?

Tax Returns for Previous Years

If taxes were not filed for some years prior to the death, you have to file them (provincial and federal). Expect to pay penalties and interest on any amounts owed.


Within six months of death for deaths between January 1 and April 30.
As soon as possible if the death was after April 30.

Tax Returns for the Year of Death

You must file tax returns (provincial and federal) for the deceased for the year of death, namely January 1 of the year of death up to the actual date of the death.

Example: Marcel died March 7. You will have to file tax returns with both levels of government and declare all income for the period of January 1 to March 7.


The deadline for filing the returns varies depending on the date of death and whether the deceased (or his or her spouse) operated a business in the year of the death.

If the deceased (or the deceased's spouse) did not operate a business in the year of death, here is the deadline:

Death between January 1 and October 31 : April 30 of the following year.
Death between November 1 and December 31:six months from the date of death.
If the deceased (or the deceased's spouse) operated a business in the year of death:

Federal taxes :

Death between January 1 and December 15: June 15 of the following year death between December 16 and December 31: six months from the date of the death

Provincial taxes:

whatever the date of death up to June 15 of the following year

death between January 1 and October 31: April 30 of the following year

death between November 1 and December 31: six months from the date of the death

Consult the Revenu Québec and Canada Revenue Agency websites to find out how to proceed in your situation.

What documents do I need to get before I can distribute the deceased's property?

As liquidator, you must get a certificate from Revenu Québec authorizing the distribution of property and a clearance certificate from the Canada Revenue Agency.

You have no option: before you can distribute property (cash, cars, furniture, share certificates, real estate, etc.), you must get the certificates. The heirs will just have to be patient, because it can take weeks, sometimes months, before you receive the certificates.

Is there any special order in which debts have to be paid and inheritances distributed?

It depends on whether the succession is solvent or insolvent, which means whether it has enough assets (money, etc.) to pay all the deceased's debts.

If the succession is solvent, this is the preferred order of payment :

Debts of the deceased (money owed)

Money owed to the spouse in the marriage or civil union because the end of the marriage or union (death ends a marriage and a civil union)

Legacies by particular title (For example, if the will says "I leave $10,000 to Paul and $5,000 to Mary", each legacy is a legacy by particular title. But "I leave all my property to my four children” is not a legacy by particular title.)

Other heirs

If the succession is insolvent, don't pay anything. Read the detailed answer to the next question.

If succession does not have enough to pay all the debts, what can I do?

If the succession does not have enough money available to pay all the debts, a specific legal procedure must be followed. It is highly recommended that you consult a lawyer or a notary.

To summarize briefly, once the inventory is done, you have to do the following:

Make an offer to the creditors (people owed money).

Get permission from the court to start paying the creditors. Note that the law says the order in which creditors must be paid.

Obviously, the deceased's property will often have to be sold to pay the creditors:

If the will gives the liquidator the power to "sell", the liquidator can then sell all the succession's assets (real estate, car, boat, furniture in the house or apartment, jewelry, etc.).

Nothing prevents an heir from buying any of the property if that heir wants to keep particular items in the family. For example, the heir can buy the piano, but it must be for a price equal to the value stated in the inventory (market value).

If the will does not give the liquidator the power to "sell", the liquidator will need the agreement of the heirs to sell anything. Failing that, the liquidator has to be permission from a court.

Remember that even if the succession is insolvent, you can still give sentimental items of little value (photos, clothes, diplomas, family souvenirs) to the heirs.

What is the liquidator's final account?

The liquidator's final account is a "report" on the liquidation. It is a document telling the heirs what is left in the succession after all debts were paid and legacies given out. It also documents how the liquidation was done.

There is no special form for the final report, and you don't have to do it before a notary or witnesses. But remember that you must date and sign it.

However, the report must have this information:

The net assets or deficit of the succession, which means the value of what is left over or the amount needed to pay the debts in full.

The legacies and debts that were paid, specifying the method of payment

The legacies and debts that remain unpaid

The legacies and debts that are guaranteed by a hypothec or other security interest

The legacies and debts that were taken on by any legatees or heirs

A statement that the liquidator has been discharged, which means the liquidator has no more obligations.

For the liquidator to be discharged, the heirs must accept the final account. They are therefore asked to sign an acceptance of the final account and discharge the liquidator. If the heirs refuse to sign it, you will have to apply to the court, and it will be a judge who decides the contents of the final account.

Dying Without a Will

What happens if I die without a will?

If you were married or in a civil union, your family property, officially known as the family patrimony, will be divided. The family patrimony is property that is divided between married and civil union couples if they separate or one of them dies. It includes property such as the family residence.

Next, the rules of your marriage or civil union regime will be applied to your property.

Then, the rest of your property will be used to pay any debts you owed before you died, as well as any funeral expenses and taxes.

Whatever is left will be divided among your heirs according to the law.

Will all of my family members inherit a share of my property?

No. The law says which members of your family will inherit, and what share they will receive. To learn more about who is allowed to inherit and in what share, see this chart.

If I die without a will, is my spouse automatically protected?
Not necessarily. If you are married or in a civil union and you don't have a will, your spouse will inherit some of your property. The previous question explains how much your spouse will receive.
If you are not married or in a civil union, the law considers that you are in a common-law or "de facto" relationship, and your partner will not inherit anything, whether you've been together one year, three years or 20 years.

Some tax laws and some social laws, such as the Automobile Insurance Actand the law on the Québec Pension Plan, give common law partners rights if their partners die. For example, if your common law partner died in a car accident and did not have a will, you can get compensation from the Société de l'assurance automobile du Québec (SAAQ) as a common-law partner. However, you will not get your partner's house, RRSPs or investments.

I am seperated from my spouse. Can she inherit if I don't have a will?

It depends, if you have a divorce judgment, then your spouse won't inherit your property.

If you don't have a divorce judgement, you are still married in the eyes of the law. Your spouse can claim money from your estate by asking for the division of the family patrimony, the application of your matrimonial regime and support payments. He can also inherit all or some of your property after you die. Contact a lawyer or notary to learn how the law applies to your personal and family situation.

If I don't have a will, does my adopted child have the same right to inherit my property as my other children?

Adopted children have the same rights as biological children. Therefore, if you die without a will and you have a biological daughter and an adopted daughter, they will inherit your property in equal shares.

If I die without a will, who will take care of my chidlren?

The law says that when one parent dies, the other parent automatically because the children's "tutor".

If both parents are dead, responsibility for the children goes to the person the parents chose in their will or when they filed a declaration with the Public Curator.

A child under the age of 18 must have a tutor. Therefore, if the parents did not appoint one in their wills or did not file a declaration with the Public Curator, then a court has to appoint a tutor for the child. A tutor has the same powers and duties as a parent. She must manage the child's property, if there is any, and she must feed and educate the child and give him a place to live.

A lawyer or notary can help you appsoint a tutor for your child.

Who will take care of settling my affairs if I don't have a will?

If you die without a will, the people who will inherit - your heirs - from you will be responsible for settling your affairs. The heirs can choose one person to do this. The heirs make this choice by a majority vote. The person chosen to settle your affairs is called the "liquidator" of your estate.

When settling your estate, the liquidator can't make all decisions on her own. For example, she must get the agreement of the heirs before doing certain things such as selling your house.

Probate: Making a Non-Notarial Will Official
Reasons for Probating a Will

Probate is a procedure that does the following : confirms the person's death confirms the identity of the person who wrote the wil notifies people who might inherit that a non-notarial will exists so they can raise important issues (for example, that there is a more recent will), or argue against probating the will (for example, because they believe it is a fake document) confirms that the will is the last will of the person who died and that it follows Quebec law

To summarize, probate confirms whether the will meets the requirements for it to be valid. Probate does not approve what the will says, and it does not prevent what it says from being challenged.

How to Probate a Will

Heirs can ask a notary or the court to probate a will.

Probate by a Notary

Probate by a notary does not "convert" the will into a notarial will.

Probate by a notary has the same effect as probate by the court. However, a notary cannot probate a will that is being challenged, for example, if someone claims the will is a fake.

It takes several weeks to obtain the probate document. Ask a notary about the time involved.

Probate costs depend on the fees the notary charges. The total cost is usually about $1,000.

Probate by the Court

You must begin with a kind of request called an "application," usually filed with the Superior Court at the courthouse in the region where the person who died lived.

You can get information on this type of application from the Justice Québec website.

Some people have a notary or lawyer prepare the application. Other people prefer to write and present it in court themselves.

It takes several weeks to obtain a probate judgment. You must pay court fees. If you use a lawyer or notary to prepare the application, you will also have to pay his or her fees. The total cost is usually about $1,000.

Documents Needed to Probate a Will

To probate a will, the notary or court needs various documents, including these ones:
the original will an official copy of the act of death issued by the Registrar of Civil Status a sworn statement by one of the witnesses of the will or, if the will is handwritten, a sworn statement by a person who is able to identify the signature of the person who made the will proof that the application for probate has been sent to potential heirs.

The Estate During the Probate Process
The estate is "frozen" during the probate process. The "estate" refers to the property of the person who died, plus amount owed to or by that person.

After the will has been probated, the executor and the heirs can get "certified" (official) copies of the will from the court clerk or the notary, if there was one involved. (The executor is the person who settles the affairs of the person who died.)

After that, the estate settlement can begin. This includes opening a bank account for the estate, closing the deceased's bank accounts, etc.

The Role of Liquidators (Executors)

What is a liquidator?

Liquidators are often referred to as "executors". However, the official term in Quebec law is "liquidator".

The liquidator is the person who is in charge of handling the estate of someone who dies. The official term for an estate in Quebec law is "succession".

The process that the liquidator undertakes is called "liquidating the succession" or "settling the succession". To do this, the liquidator must close accounts, file taxes, collect money owed, make an inventory of property and debts, distribute property to heirs, etc. To learn more about these steps, see our article Settling an Estate.

Who can be a liquidator?

The liquidator must be an adult who has not been placed under protective supervision (having an advisor or tutorship or curatorship).

A child under 18 who has married or been completely emancipated by a court decision can also, in theory, be a liquidator.

The notary who drew up the will can act as the liquidator, but only if the liquidation is done free of charge.

For a fee, many professionals (notaries, lawyers, accountants, etc.) offer liquidator services.

A savings company or trust company registered with the Autorité des marchés financiers (an agency that oversees financial markets and services) can also be a liquidator. Most financial institutions and investment companies fall into this category.

It is important to note that a liquidator can get help from these professionals and organizations, even when they are not named as liquidators.

How is a liquidator chosen?

The liquidator can be named in the will of the deceased. For example, "I name my daughter, Shannon, liquidator of my estate".

If the will does not name a liquidator or if the deceased did not make a will, the heirs automatically become the liquidators. In that case, the heirs can name the liquidator by a majority vote.

Can there be more than one liquidator?

Yes. A will can name several liquidators.

If there are several, the will usually says how decisions will be made. For example, one liquidator can be responsible for practical things like organizing a funeral, finding documents, etc. A second "professional liquidator" can take care of more difficult issues, such as property, debts and taxes. If the will does not specify the tasks to be done, who should do them, and the way decisions have to be made, the liquidators must act together unanimously.

If there is no will or the will does not name liquidators, the heirs become the liquidators. In this case, they share the responsibilities. Through a majority vote, the heirs can also name one person among them to act as the sole liquidator. They can also name any other person to fill the position (e.g. a notary, lawyer or accountant). If they disagree, they can go to court to have a liquidator named.

I have been named as a liquidator. Do I have to accept?

No. The person chosen by the deceased is not obliged to take on the role of liquidator. If you do not want be the liquidator, you must tell your co-liquidators or your replacement, if a replacement is named in the will. If you are the only liquidator and a replacement has not been named in the will, it is up to the heirs to name your replacement by a majority vote. If they disagree on a replacement, they can go to court to get a decision.

But there is an exception to these rules: if you are the only heir, you must accept the role of liquidator.

Keep in mind that you can still ask a notary or lawyer to handle the liquidation of the estate. This professional will consult you at each stage of the process and keep you informed of the status of the file.

What are the powers and responsibilities of a liquidator?

The powers of a liquidator are those described in the will. If nothing is specifically mentioned in the will, the liquidator must administer the property of the estate until it is transferred to the heirs. However, the liquidator cannot sell the property except in special situations. For example, the liquidator can sell property if all the heirs agree, if the property is too costly to keep, if it is losing value, or if it is perishable.

The law imposes responsibilities on liquidators to make sure they properly handle liquidations. Liquidators must act carefully, diligently, honestly, and faithfully (in the best interests of the beneficiaries of a succession and the wishes expressed in the will). They must not place themselves in conflicts of interest.

If the liquidator makes unreasonable decisions, does not administer the estate properly or hides certain information, any person with a sufficient interest in the estate (e.g. co-liquidators or a member of the family) can go before a court to have the liquidator replaced and to get compensation for harm suffered.

Can a liquidator delegate certain tasks?

Yes. A liquidator can delegate a specific task to another person. To do this, the liquidator must sign a document called a mandate authorizing that person to act in place of the liquidator. The liquidator can delegate tasks to relatives or professionals. For example, imagine that Christine cannot attend a meeting with the notary for the sale of her father's house. She can sign a mandate giving her spouse the power to represent her for the purposes of the sale.

Liquidators can also delegate all of their responsibilities. But in these cases, they can only delegate to their co-liquidators.

Can I resign from my role as liquidator?

Yes. You can resign from your role as liquidator at any stage of the liquidation. However, you cannot resign if you are the sole heir.

If there is a will, you must respect the resignation procedure set out in the will. If there is no will or the will does not say what the resignation procedure is, you must advise the heirs of your decision in writing.

No matter how the resignation occurs, you must report to the heirs about your management of the estate during the period you acted as a liquidator. Also, you must avoid resigning at a critical moment in the liquidation that could compromise the process.

If you think the role of liquidator is too much for you, have you considered hiring a notary or lawyer? One of these legal professionals can help you with the liquidation process. Their professional fees can even be paid with money from the estate.

Does a liquidator have a right to be paid?

Yes. Liquidators have a right to be paid for the hours of work that they invest in the liquidation of an estate. However, liquidators who are also heirs cannot be paid unless the will says they can be paid or the other heirs agree. If the heirs cannot reach a decision, a court will decide.

Liquidators do not have to pay the costs of settling an estate out of their own pockets. Professional fees and other costs related to an estate (e.g., traveling expenses, fees to do a will search) must be reimbursed by the estate itself. However, these expenses must be reasonable and the liquidator cannot spend unreasonably.

My brother lives in another country. Can I still name him as liquidator?

Yes, but the choice could lead to some important tax consequences. It's the liquidator who has "control" of the property in the estate. So if the liquidator lives outside of the country, the provincial and federal tax authorities will consider it a "foreign estate"... and the taxes will be higher.

To reduce taxes, it is better to ensure that at least one of the liquidators lives in Canada and that the liquidation, for the most part, occurs in Canada.


Québec is the sole Canadian province to possess its own civil law regime derived from French law. However, the testamentary rules provided by the Civil Code of Québec were also profoundly influenced by English law.

In Québec as in the other Canadian provinces, a person enjoys a very broad freedom to test, subject to very few restrictions. So as to protect the financial security of spouses, the legislator has instituted three (3) legal mechanisms of public order: 1) the survival of the obligation to provide support beyond the debtor’s death; 2) the family patrimony, which must be partitioned with the deceased’s spouse; and 3) the compensatory allowance, which allows the deceased’s spouse to claim a sum of money when he/she has contributed pro bono to the enrichment of the deceased’s patrimony.

In the absence of a will (intestate succession), the C. C. Q. sets out the principles of legal devolution, i.e. the manner in which the succession’s property must be partitioned. Essentially, the property shall be partitioned in function of the successors’ degree of relationship with the deceased.

Both the intestate succession and the testamentary succession are subject to the principle of representation. Representation intervenes whenever a successor has died previously to the deceased or is declared unworthy. In these cases, his own descendants may inherit in his stead.

When the succession is opened and they are called upon to succeed, the successors may decide to accept or renounce the succession. In the absence of a successor’s explicit intention, the C. C. Q. provides that he is presumed to have accepted the succession subject to inventory (under reserve of knowing the state of the deceased’s assets and liabilities).

When an heir accepts a succession that includes debts, he is not responsible for the payment of such debts beyond the value of the property he would receive from the succession. Indeed, the succession’s patrimony remains separate from the heir’s until the succession has been liquidated.

The task of paying the succession’s debts rests with the liquidator. Hence, he is responsible for the payment of the taxes owed by the deceased before partitioning the property between the heirs. The taxes owed by the deceased are calculated at the time of his death and include the following legal fiction: the deceased is deemed to have disposed of his property at their market value at the time of his death. The deceased tax debt thus includes the capital gain tax owed on the realization of these assets and must be paid from the succession’s property.

This presumed disposition may lead to important consequences for the heirs, as the succession may have to sell the deceased’s property to pay the fiscal debts. In the case of a family business, the heirs may have to relinquish their ambitions to continue the business’ operations if financial resources are inadequate. In such cases, the deceased would have been well served by planning the fiscal aspects of his succession, including the implementation of an estate freeze.

Onatario & Other Provinces


"Will" means

(a) a will,

(b) a testament,

(c) a codicil,

(d) an appointment by will or by writing in the nature of a will in exercise of a power,

(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or

(f) any other testamentary disposition except the following:

(i)a designation under Part 5 [Benefit Plans];

(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident and Sickness Insurance] of the Insurance Act;

(iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada.

Person eligible to make a will :

A person who is 16 years of age or older and who is mentally capable of doing so may make a will.

A will made by a person under 16 years of age is not valid.

When a person is a spouse under this Act

(1)Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

Effect of adoption

In this section, "pre-adoption parent" means a person who, before the adoption of a child, was the child's parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,
(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

Valid Will

To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c) it is valid under another provision of this Act.

Will by members of military forces

A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may, regardless of his or her age, make a gift of property by will in writing, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.

(2) If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness.

(3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in the presence of the will-maker and of that other person.

Property that can be gifted by will :

(1) A person may, by will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the will is made.

(2) Unless a contrary intention appears in a will, when a will refers to property, the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-maker.

(3) A gift in a will

(a) takes effect according to its terms, and

(b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give.

Gift of land contemplating division

If a gift of land in a will to 2 or more beneficiaries contemplates a physical division of the parcel by subdivision or otherwise, the gift takes effect as a gift to the beneficiaries as tenants in common in proportion to their interests, unless a contrary intention appears in the will.

Residue of estate

If a will does not give or otherwise dispose of all of the will-maker's property, the property that is not the subject of a gift or otherwise disposed of in the will

(a) must be distributed to the persons who would be entitled if that property were an intestate estate, and

(b) if there is no person who would be entitled under paragraph (a), passes to the government and is subject to the Escheat Act.

Gift of land contemplating division

If a gift of land in a will to 2 or more beneficiaries contemplates a physical division of the parcel by subdivision or otherwise, the gift takes effect as a gift to the beneficiaries as tenants in common in proportion to their interests, unless a contrary intention appears in the will.

When gifts cannot take effect

(1) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker's death, in accordance with section 42 (4)

(c) to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (1) applies whether the beneficiary's death occurs before or after the will is made.

Gifts of unowned property

(1) Subject to subsection (2),

(a) a gift of property that the will-maker does not own is void, and

(b) the rights of a beneficiary are not affected by the purported gift by the will-maker of property owned by the beneficiary.

(2) A will-maker may make a gift of property that is conditional on the disposition by the beneficiary of property owned by the beneficiary.

Revocation of gifts

(1) This section is subject to a contrary intention appearing in a will.

(2) If a will-maker

(a) makes a gift to a person who was or becomes the spouse of the will-maker,
(b) appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or

(c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker, and after the will is made and before the will-maker's death the will-maker and his or her spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.

(3) Despite section 2 (2.1), the operation of subsection (2) of this section is not affected by a subsequent reconciliation of the will-maker and the spouse.

(4) For the purposes of subsection (2), the relevant time for determining whether a person

(a) was the spouse of a will-maker is at the time the will was made, or

(b) became the spouse of the will-maker is at any time after the will was made and before the spouses ceased to be spouses under section 2 (2).

Will exercising a power of appointment

A will made in accordance with this Act is, as to form, a valid execution of a power of appointment by will, even if it has been expressly required that a will in exercise of the power be made in some form other than that in which it is made.

Rules if assets are not sufficient

(1) This section is subject to a contrary intention appearing in a will.

(2) If a will-maker's estate is not sufficient to satisfy all debts and gifts, the debts and gifts must be satisfied or reduced in accordance with this section.

(3) Land charged by the will-maker with payment of debts or pecuniary gifts, or both, is primarily liable for the debts and gifts, despite a failure of the will-maker to expressly exonerate the personal property.

(4) Land and personal property must be reduced together.

(5) Subject to subsection (3), assets are reduced in the following order:

(a) property specifically charged with a debt or left on trust to pay a debt;

(b) property distributed as an intestate estate and residue;

(c) general, demonstrative and pecuniary legacies;

(d) specific legacies;

(e) property over which the will-maker had a general power of appointment.

Undue influence

In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-maker was present, and

(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

Modification & Revocation of Will :

Modification of will

(1) To make a valid alteration to a will the alteration must be made in the same way that a valid will is made under section 37 [how to make a valid will].

(2) Subject to subsection (4), an alteration to a will is valid if the signature of the will-maker to the alteration, and the witnesses to that signature of the will-maker, are made
(a) in the margin or in some other part of the will opposite to or near to the alteration, or

(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

(3) An alteration to a will that is not made by the will-maker in accordance with this section is ineffective

(a) except to invalidate a word or provision that the alteration makes illegible, unless the court reinstates the original word or provision under section 58 (4) [court order curing deficiencies], or

(b) unless the court orders the alteration to be effective under section 58.

(4) An alteration to a will that does not comply with subsection (2) is valid if

(a) the alteration

(i) does not substantively alter the effect of the will, and

(ii) is in respect of form, style or numbering or is a typographical error, or

(b) there is evidence to establish that the alteration was made before the will was executed, if the alteration substantively alters the effect of the will.

Revocation of will
(1) A will or part of a will is revoked only in one or more of the following circumstances:

(a) by another will made by the will-maker in accordance with this Act;

(b) by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 [how to make a valid will];

(c) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;

(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 that
(i) the consequence of the act of the will-maker or the other person is apparent on the face of the will, and

(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.

Revival of will
(1) A will or part of a will that has been revoked is revived only by a will that shows an intention to give effect to the revoked will or the part that was revoked.

(2) Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

(3) If a will has been revived by a codicil or has, by a codicil, been re-signed in the presence of 2 witnesses, the will is deemed to have been made at the time it was revived or re-signed.

(4) A will or part of a will that has been revoked may not be revived except

(a) by an order of the court under section 58 if the court is satisfied that the will-maker intended to give effect to the will or part of the will that was revoked, or

(b) in accordance with any other provision of this Act that recognizes the revival of a will.

Rectification of will
(1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a) an error arising from an accidental slip or omission,

(b) a misunderstanding of the will-maker's instructions, or

(c) a failure to carry out the will-maker's instructions.

(2) Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and

(b) before the notice of the application for rectification is delivered to the personal representative.

(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

Validity of wills made in accordance with other laws
(1) A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance

(a) with the law of the place where the will is made,

(b) with the law of the will-maker's domicile, either at the date the will is made or at the date of the will-maker's death,

(c) with the law of the will-maker's ordinary residence, either at the date the will is made or at the date of the will-maker's death,

(d) with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker's death,

(e) with the law of British Columbia, but the will is made outside British Columbia,

(f) with the law of the place where the will-maker's property is situated at the date the will is made or at the date of the will-maker's death,

(g) in the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or

(h) to the extent that the will exercises a power of appointment, with the law governing the essential validity of that power.

(2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person's death would have validated the will.

(3) The formal validity of a will that revokes

(a) a will that would be treated as formally valid under this Division, or
(b) a provision of a will that would be treated under this Division as a formally valid provision, may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.


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