Will and Powers of Attorney - Mandate
It won't kill you to write a will. As a matter of fact, it will give you peace of mind to know that, when the people you love are struggling to deal with your passing, you have already taken care of everything to eliminate problems and keep everyone on good terms.
Whether you have extensive holdings or few possessions, it is of paramount importance that they be transferred as smoothly as possible to those to whom you have succession by leaving clear, written instructions.
In the absence of a will, the law determines who your heirs are and how much they will receive. The people designated as heirs in this way may not necessarily be those whom you would have chosen. This situation could give rise to many disagreements.
Don't let the law choose your heirs for you. Make your last wishes clear.
Why a notarial will?
A notarial will offers the most advantages. As a general rule, this type of will is made before a notary and a witness.
It allows the liquidation of the succession to be initiated more quickly.
A notarial will comes into effect immediately upon the death of the testator. All other types of wills—handwritten (holograph) or signed by two witnesses—must be probated. This delays the beginning of the settlement of the succession and entails legal fees that are undoubtedly higher than the cost of drawing up a notarial will. Writing your own will is not synonymous with saving time and money.
It ensures that your wishes are faithfully recorded in writing.
Your notary is a specialist in succession law and an expert in drafting legal documents. This will ensure that your will is well written, complete and, above all, contains no ambiguity. By going to a notary—a lawyer experienced in estate planning and drafting notarial acts—you can rest assured that your will is perfectly adapted to your financial situation and that there will be no problems interpreting it. Your notary knows the importance of choosing the right words. Your notary will record your last wishes in accordance with the law and your instructions. Furthermore, the advice given to you by your notary will help you to remember everything and plan for all possibilities, which will greatly simplify the task of the person(s) responsible for the liquidation of your succession.
Do not prepare your will by yourself. Certain grounds for nullity could apply. A poorly written will could have very serious consequences for your family and friends. It could also be declared invalid because it runs contrary to the law or because it is hard to interpret. If your current will is not notarial, it is in your interest to have it examined by a notary to ensure that it is complete.
It provides better protection for your loved ones.
Your notary knows the law and may suggest that you include several provisions in your will to provide better protection for your loved ones. This way, your notary can make the property you leave behind exempt from seizure, such that your heirs will be better protected should they find themselves in a poor financial position. Your notary can also explain the advantages and disadvantages of including life insurance proceeds in the legacies of your will.
Your notary can help you draft a clause that allows you to name a tutor to take care of your children and look out for their interests in the event of the death of both parents.
Finally, your notary can advise you on the terms and conditions for releasing property to your heirs, thus avoiding a situation in which a person who is still young and liable to mismanage this new-found wealth is able to access it before reaching a certain age or prior to the existence of specific circumstances.
It lets you save on taxes.
A notarial will allows you to set up income tax planning that could save your heirs a great deal of money. Although succession tax no longer exists in Quebec, the fact remains that the succession of the deceased must file a final income tax return. This is where the tax authorities come knocking at the door, if you haven't planned for proper allocation and delivery of your property.
It can never be lost or altered.
Another advantage of a notarial will is that the original is kept in a safe place by the notary. Your will is thus protected from falsification or destruction by someone who is upset with the provisions it contains. It is also protected against loss.
Your notarial will is listed in the Register of Wills kept by the Chambre des notaires. The Register contains your name and other information enabling your family and friends to find your final will and testament after your death. The Register cannot compromise the confidentiality of your will, since it only contains information on its existence, not its content. Only after your death will the Register provide your family with the name of the notary who possesses your will. You are therefore guaranteed that the person entrusted with settling your succession will be able to locate your will.
Powers of Attorney - Mandate
The idea of losing the ability to decide for oneself is not a pleasant thought for anyone. No one, however, is invulnerable to a serious accident or illness that could result in the loss of one's mental faculties. It doesn't always happen to other people!
Who would take care of you if, suddenly, you could no longer take care of yourself?
If misfortune were to befall you, who would take care of you and your property? Who would have the authority to refuse or consent to medical treatments in your name, or to decide in which health-care institution or long-term care facility you would be placed? Who would see to your comfort and well-being? Temporary or long-term incapacity to manage your affairs could also put you in a very delicate position. That is why it is crucial to choose a person who will make sure your rent is paid, your insurance policies are kept up, your tax returns are filed, and who, if need be, will see that your house is sold for a good price to ensure you have proper financial protection.
Some people tend to assume that, if they are not able to attend to their normal affairs or make decisions in their own best interest because of illness or infirmity, their spouse or children will automatically be authorized by law to do these things. This is incorrect.
In the absence of a mandate given in anticipation of incapacity, parents and friends must be gathered together to give their opinions as to who should take care of you and your assets. In the case of split or blended families, discussions of this nature are often heated, to say the least. Just think what would happen if the spouse from whom you have been separated for 20 years ended up sitting around the same table as your children from your second union. Why let others make decisions that are rightfully yours to make?
The Civil Code allows you to prepare a mandate in anticipation of your incapacity. By doing this, you can name in advance the person(s) who will be authorized to take care of you and your assets should something happen to you. Writing a will protects your loved ones; writing a mandate in anticipation of incapacity protects you.
Don't let others make decisions for you as to who will take care of you when you are no longer able. Take the time now to choose someone you trust.
For all these delicate matters,
you can rely on Eric Dugas.