Wills and mandates

By making a will, you yourself decide who your heirs will be and what share each will receive. If you don’t make a will, the rules of the Civil Code of Quebec will apply: consult  Distribution of the inheritance in a legal succession (table) | Gouvernement du Québec to find out how your property will be divided.De facto spouses: know the rules!

De facto spouses with or without children

If you are in a de facto union, have no children and your spouse dies without having made a will, you will not receive any inheritance.

However, if you are in a de facto union and have common children born on or after June 30, 2025, you are automatically subject to the new parental union regime, which has been in effect since that date.

Under this regime, if your spouse dies without a will, you qualify as a legal heir. As an heir, you will be entitled to one-third of the estate, while the children born during your relationship (after June 30, 2025) will be entitled to the remaining two-thirds.

Several provisions are included in the new parental union regime, notably regarding including children born before its entry into force: consult your notary for details.

Also note that if you have a cohabitation agreement with your spouse, you cannot include testamentary provisions in that agreement. It is therefore essential for you to ensure your estate planning is in order with a will.

There are four types of wills

1. Contractual institution
   This is a clause that may be included in your marriage contract or civil union contract, also known as a “property goes to the last surviving person” clause. The marriage contract or the civil union contract is therefore recognized as a will unless another document, notarized or not, revokes this clause.
2. Notarial will
   This will is prepared by a notary and signed before him and a witness.
3. Will made in the presence of witnesses
   Any person may write this type of will, but it must be signed by the testator and two witnesses. (Attention: People who act as witnesses when you sign your will cannot inherit from you. Therefore, you must carefully choose, your witness.
4. Holograph will
   This will must be entirely handwritten and signed by the testator.

Finally, note that in no case may a will be made jointly by two ore more persons.

The best choice
Among these options, it is generally recommended to choose a notarial will, for several reasons.

• You benefit from the expertise of a specialist in the field: your notary.
• You estate will be settled more quickly, because this type of will does not have to be probated by the court or by a notary to be executory.
• The original is kept in a safe place by the notary and so it cannot be lost or damaged.

Your notary may recommend that you include clauses to better protect your family members (appointment of a tutor to your minor children, disposition of life insurance proceeds, conditions for delivery of property to your heirs, etc.).

The name of the liquidator of your estate must appear in your will.

A vital role
The designated person plays a key role for you after your death. The liquidator must transfer your property to the designated heirs according to your wishes set out in the will.

The right person
Before entrusting this task to someone you know, you should ask them if they are interested in accepting this responsibility. Here are the qualities you should look for in the person who will have to perform this complex duty.

• Judgment
• Honesty
• Transparency
• Availability
• Ability to act and make decisions
• Competence

Like everyone, you are not immune to accidents or illness which could cause you to lose your ability to make decisions for yourself. That’s why it’s important to prepare your protection mandate, a document that will enable you to determine now who will take care of you and your property should you ever become incapable.

Notarized mandate or mandate in the presence of witnesses?
It is recommended to choose a notarized protection mandate. This way, the notary can advise you on the drafting of your mandate so that it reflects your personal and family situation. The notary will also be able to testify that you were fully capable when you signed your mandate.

A notarized mandate offers you many advantages.

• You avoid the long and costly process of putting into place protective supervision.
• Since the mandate is kept in a safe place at the notary’s office, it will be easy to locate and no one will be able to destroy it or change it.
• You will not need witnesses.
• You will be able to name one mandatary to manage your property and another to look after your well-being.
• You will be advised as to the clauses you can include to ensure that your mandate accurately reflects your wishes concerning such matters as:
  – organ donation
  – absence of therapeutic and diagnostic obstinancy
  – appointment of replacement mandataries
  – the mandatary’s obligation to provide the potential heirs to your estate with an accounting
  – permission to use your assets to provide for your spouse and your financially dependent children
  – appointment of a tutor to your minor children

fdp Private Wealth Management offers you a turnkey solution by giving you access to all the resources you need and by helping you make the best choices.

You never know what the future holds…
Don’t take risks. Make arrangements now so that your loved ones will be well protected if some misfortune befalls you. For more information on wills and protection mandates, or to obtain the help of an expert to prepare these documents, place your trust in one of our advisors.