Lawyer specialized in succession
The death of a loved one always brings up questions of inheritance, depending if he died with or without a valid will. Our estate lawyers will be able to answer your questions and concerns and support you, whether it is :
- To verify the will ;
- For the determination of the heirs ;
- The payment of debts ;
- Sharing the estate ;
- Evaluating the behavior of the liquidator
Sometimes these same questions can be the heart of a family dispute or Estate dispute. If you feel helpless, if a disagreement arises over the obligations or failures of the liquidator or for questions of rendering of account and partition of the property, our estate lawyers will bring a legal vision and work together with you to rectify the situation.
The help of a lawyer in the death of a loved one allows the heirs and the liquidators to feel supported during a difficult stage and to ensure that all the stages of the process, from the opening of the succession to the final partition, are made in the rules of art.
The importance of making a will
A will is used to:
- Designate the persons authorized to carry out your wishes ;
- Clarify the procedures related to your property and other assets ;
- Specify your wishes regarding your funeral ;
- Specify any other relevant information that are important to you.
The preparation of such a document is very useful for the estate planning and for your successors which will allow them to honor your last wishes.
There are three types of will:in the presence of witnesses (english form), notarial act or holograph will written, dated and signed by hands..
An estate lawyer can write a will and help you plan your estate. This service gives you peace of mind and ensures that your successors will know your last wishes at the time of your death.
Do not wait for a situation to deteriorate and call on our services.
Do you want to do a will search, authenticate a will, plan your inheritance or have the last wishes of a loved one respected ?
There are two main situations to consider when a loved one dies. The first is a death with a Will giving opening to a testamentary succession, the second is a death without a will which gives opening to an Intestate Succession or a Legal Succession.
A will can take many forms, it can be written by the hand of the deceased in which case it will be a holograph will. It may have been drafted electronically and signed by the deceased as well as two witnesses, it will be a will in the presence of witnesses or in English form and finally it may also be a notarial will, which will have been written by a notary.
Before starting any estate process, you must first find the last will drawn up by the deceased. To do this, a testamentary search both in the Register of wills and mandates of the Barreau du Québec and the Quebec Chamber of notary is necessary.
Such research can be done by yourself, but we can also do it for you which will give you peace of mind.
Verification of a will
One of your loved ones died with a holograph will or in the presence of witnesses?
This will must be verified by the Court. If you are the appointed liquidator by this will, you are responsible for taking these steps. This task can be complex, which is why it is recommended that you hire a professional.
If you want to have the validity of a will checked, lawyers at Centre Légal Fleury, who have extensive experience in court, can take care of drafting the procedure as well as your representation.
An estate lawyer can also check if a will has already been validated by the Court. You should know if a will is verified, it does not mean that it cannot be partially or fully challenged.
Death without a will
One of your loved ones died, did you do a will search and you realized that he died without a will or without a valid will?
Liquidating the estate can be difficult in these cases. The legislator has laid down specific rules which apply when a person dies without a will, namely intestate succession.
The rules of legal devolution are contained in inheritance law mainly in articles 653 and following of the Civil Code of Quebec and make it possible to determine the legal heirs of the Succession.
Several situations can have an impact on the determination of heirs.
- Was the deceased married or in process of divorce at the time of death ?
- Is there a surviving spouse ?
- Did he have children at the time of his death even not recognized one ?
- He may not have had any children, but did his parents survived him ?
- Had he or she brothers and sisters or other family members ?
Finally, the inheritance lawyers of the Center Légal Fleury can help you determine the heirs of an intestate succession and the appointment of a liquidator for the intestate administration.
Liability and duties of the liquidators
The Civil Code of Quebec lists a number of obligations and responsibilities that fall to the liquidator of an Estate (also called the executor) from the time of death.
In addition, the Testament of the deceased may provide for additional duties. The role of the liquidator is to act as administrator of the estate’s property and debts, until the final partition.
His main duty is to see that the deceased’s last wishes are carried out. Its main duties are :
- Verify if the deceased died with or without a will by carrying out a will search;
- If the deceased died with a will, have it checked by the Superior Court, if necessary;
- Within six months of death, the liquidator must make an inventory of the estate’s assets and debts (The will may provide that the liquidator does not have to do this step);
- Prepare and deliver to the heirs and creditors an annual account (management report) as long as the estate is not settled;
- Publication on the Register of Personal and Movable Real Rights (RDPRM) and in the Land Register, if applicable, of a notice indicating that he is the liquidator of the succession;
- Payments to creditors, taxes and legatee by particular title;
- Delivery of property to heirs according to the valid will or intestate rules;
- The liquidator must publish a notice of closure of his inventory on the RDPRM and in a newspaper circulating in the locality of the residence of the deceased;
- He must inform the heirs and the creditors of the registration of the notice of closure and of the place where the inventory can be consulted;
- He must make a final account of his liquidation and a proposal for partition
- Finally, he must publish a notice of closure of the liquidation of the succession to the RDPRM;
As the administrator of the property of others, the liquidator must act in the common interest of the heirs and avoid acting in his personal interest. He must fulfill these responsibilities in the interest of the heirs and exercise prudence, diligence, honesty and loyalty.
You should know that in the absence of a compensation or compensation clause provided for in the will, his office will be carried out without salary, costs or compensation.
Possible estate disputes
Several estate situations can unfortunately turn into litigation. For example, when a liquidator fails to fulfill his legal and / or testamentary obligations, when the inheritance is misappropriated for personal purposes or when one wishes to contest the validity of a will because of incapacity mental of the testator.
In all cases, our lawyers have extensive experience in civil procedures leading to estate litigation. Only lawyers are entitled to represent an estate liquidator in court.
Failure of the liquidator
As mentioned, the liquidator of a Estate has several legal and testamentary obligation that he has to fulfil.
It is possible that a liquidator neglects to comply with his obligations, such as :
- If he does not make an inventory ;
- If its inventory is not exhaustive ;
- If it does not produce an annual or final account ;
- If he doesn’t pay the creditors or taxes encountering penalties that depletes the estate
A lawyer from the Centre Légal Fleury can then represent the heirs in order to compel him to respect his obligations. Ultimately, if the liquidator commits a serious breach of his obligations or if he completely fails to comply with them and causes prejudice, the heirs may ask the Court to replace him.
Contesting a will and inheritance appropriation
Do you believe that a loved one prepared or changed their will under pressure from an heir so that this heir would be favored, and that the wishes of the deceased would not have been the same without this pressure?
This maneuver could be considered as inheritance appropriation. If this is the case, the inheritance share to that person or the entire will could be canceled.
To do this, whoever alleges misuse of the will of the testator will have to demonstrate the fraudulent maneuvers as well as the bad faith of this person.
Getting close to someone before their death, taking care of them a little bit more and then, a change in their wills is not, at first glance, a inheritance appropriation. All of the circumstances must be analyzed before reaching this conclusion.
The case of a legacy to healthcare professionals
Following the death of a loved one, if he or she bequeathed property to a health professional who worked in an establishment where he was treated or resided, this legacy has no effect. In fact, the law provides an irrebuttable presumption of inheritance appropriation in these circumstances.
If you believe that someone close to you has been a victim of this maneuver, contact us immediately!
The ability to test
On the other hand, it is possible that at the time of writing and signing the will, the testator was not in a physical or psychiatric state making him able to test. The person who alleges this inability has to prove it, normally through doctors’ files, which could be a difficult task due to confidentiality.
The central question to ask is as follows :
When testing and signing the will, were the intellectual capacities of the deceased sufficient to understand the scope of all testamentary dispositions?
If the answer to this question is no, an heir or any other interested person may request the nullity of the will. A lawyer can help you contest a will for inability to test.