How to write your last will

The 3 types of wills

1 - HOLOGRAPH WILL

The holographic will must be written by the hand of the testator (author of the will) and must be signed and dated. It is mostly written on traditional paper, but it is valid regardless of the medium (toilet paper, notebook, house wall, etc.).

For the verification of this type of will, someone who knew the person (who is neither relative nor ally of the deceased) must declare under oath that he recognizes the handwriting of the deceased.

Benefits :

• Free: It can be written without paying the costs of a lawyer.
• Accessible: It can be completed from the comfort of home.

Disadvantages:

• Destructible: It can be destroyed easily, since there is only one unprotected copy. If a loved one gets their hands on the document and disagrees with it, he or she can easily make it disappear. Once destroyed, there is unfortunately no trace of the holographic will.
• Incomplete: When you have no legal knowledge, it may be clumsily worded and may not include all of the property and assets in your possession or the appointment of a liquidator.
• Tedious verification times: It is not automatically applicable. The will must be probated in court or by a notary and verified to make it enforceable so it can be applied. This leads to additional delays in the estate settlement. We are talking of at least three additional months to be added to the deadlines for the issuance of the Death Certificate (by the Registrar of Civil Status) and the Will Search.
• Expensive to have it checked: The costs incurred only to have it checked are at least $2,000. Not to mention the parallel costs that could result.

2 - WILL BEFORE TWO WITNESSES

The will with two witnesses can be written on a computer. That said, each page must be initialed (initials) by the testator and the two witnesses.

For the verification of this type of will, one of the two witnesses who signed must declare under oath that he was present.

Advantages and disadvantages: identical to the first type of will.

3 - WILL BEFORE NOTARY

The will made by a notary is produced by the latter and signed, then kept in a safe place.

Benefits:

• Automatically applicable: Once the Death Certificate and the Will Search have been carried out, it is automatically applicable.
• Complete: There is no missing paragraph or clause that could make the succession problematic. It is worded in such a way that it settles harmoniously.
• Indestructible: The notary keeps the original in his vault, so the notarized will cannot be modified or destroyed.
• Traceable: The document is registered with the Chambre des notaires du Québec.

Disadvantages:

Notary fees: For a simple will, of a simple family situation, dated June 20, 2023, the fees start from approximately $380 (plus taxes and registration fees) for the drafting of a notarial will.

What is the purpose of the will search?

Whether it is notarized, drawn up before witnesses or holographic, it will always be the most recent will that will take precedence.

The will search at the Barreau du Québec and the Chambre des notaires du Québec makes it possible to certify that the will we have in our hands is the last one issued or to guarantee that there is none.

Following the death, regardless of the type of will chosen or not, there will always be a will search to be carried out. If no will exists, the estate will follow the rules of legal devolution depending on the relationship with the deceased. Even in this case, we must also ensure that there is none via these two instances. This is a mandatory step and the first to be completed in order to undertake the following steps.

Legend

If there is no will, it is wrong to say that the property and assets will go directly to the government, it is only as a last resort. Above all, the rules of legal devolution will be applied.

Traps

Today, most Quebecers are not united by the bonds of marriage. Without a will, Quebec couples living as common-law spouses are not protected. Under the law, common-law spouses inherit nothing.

Residual possesions

Often in holographic wills, people only list specific assets to bequeath (for example the house and the car), but the rest is not mentioned. It is not uncommon for people to forget to specify to whom the residual possessions belongs (bank accounts, jewellery, etc.).

For the unforeseen residual possessions, one must then act as if the succession follows the rules of legal devolution AB intestate (that is to say as if there was no will).

Give full administration

The notary writes clauses in your will that give full administration to the liquidator so that the executor can more easily administer the estate settlement. Without these clauses, it is sometimes more difficult for the liquidator to carry out the necessary banking operations.

Holographic wills or wills before witnesses usually do not have these clauses which simplify certain banking operations relating to the succession or the sale of a property.

Memoria customers benefit from an estate settlement support service. To complete your funeral prearrangements or be referred to a notary who will be able to guide you, do not hesitate to contact us directly at 514-277-7778.