Probating A Non-Notarial Will In Quebec

Drawing up a will is crucial for anyone concerned about planning the distribution of their property after their death. In Quebec, for certain wills to be fully valid and enforceable, they must be probated – or recognized as official – by the competent authorities. But what does probating a will involve? Do all wills have to be probated? Does the procedure absolutely have to take place in court?

PROBATE: WHAT IS IT ABOUT?

As the name suggests, probate is a procedure by which a competent authority, i.e. a court or a notary, verifies holographic wills and wills made before witnesses. However, a notarial will, which is an authentic act, does not need to be probated by a court or by a notary. This is why it is almost always recommended to have a will notarized by a notary, avoiding thereby the inconvenience of probate.

Probate is a mandatory step – provided for by the Civil Code of Quebec – in the settlement of an estate (or “succession”, as it is referred to in Quebec) whenever the deceased left a non-notarial will. The “estate” refers to the property of the person who died, plus any amounts owed to or by the deceased.

WHAT IS THE PURPOSE OF PROBATING A WILL AFTER DEATH?

Probate is a procedure that has several purposes:

• Verify proof of death: probate confirms that the testator is deceased, which is a prerequisite for the procedure to be initiated.
• Confirm the identity of the author of the will: through probate, it is established that the will was in fact written by the deceased or at his or her request and that it is not a fraudulent document.
• Inform potential heirs of the existence of the will: probate also serves to notify people who may have rights to the estate of the existence of the non-notarized will. This gives these people the opportunity to present new evidence, such as the existence of a more recent will, or to object to the probate of the will if they believe that it does not emanate from the deceased.
• Confirm that the will is the last valid will of the deceased: probate ensures that the document presented is indeed the last will and testament of the deceased and that it is valid according to Quebec law. This involves checking that the formal conditions required by law have been respected.

It is important to emphasize that probate rather focuses on the formal requirements of the will, and not on its content. Probate does not approve what the will says, and it does not prevent what it says from being challenged later.

WHAT TYPES OF WILLS MUST BE PROBATED?

Notarial wills

A notarized or notarial will is the most commonly used type of will in Quebec. It is drawn up by a notary, who advises the testator on the testamentary provisions and ensures the legal validity of the document. Probate is not required for this type of will. Lawyers can also draft wills, which may be signed before a notary. A will drafted by a lawyer and signed before a notary is also a notarial will that does not need to be probated.

Holograph wills

A holograph will is a will hand-written entirely by the testator and signed by him, without the intervention of a notary or witnesses. For a holograph will to be valid, it must be probated by a court or by a notary after the death of the testator.

Wills made before witnesses

A will made before witnesses is a will written and signed by the testator in the presence of two witnesses. For a will made before witnesses to be valid, it must also be probated by a court or by a notary after the death of the testator.

WHAT ARE THE STEPS IN PROBATING A WILL?

1. Searching for the will

The first step is a will search, a process of searching for the deceased’s last will and testament. It is recommended to go through the deceased’s personal papers, contact your notary, the Quebec Bar or call on an estate planning lawyer for help in this process.

Once the will has been located, it is necessary to ensure that it is complete and unaltered, and that it reflects the last wishes of the testator.

2. The probate application before the court

Once the will has been found, the application to have a will probated may be made by any interested person - usually the liquidator of the succession - or by a legal professional acting on behalf of a person interested in the succession. The liquidator, called “executor” in the rest of Canada, is the person who settles the affairs of the deceased. An application to have a will probated must be filed with the competent court, generally the Superior Court of Quebec. This application must contain information on the testator and heirs, as well as the documents necessary to support it.

3. Preparation of required documents

The application for probate must be accompanied by certain documents, such as the original will, an official copy of the testator’s death certificate, a sworn statement by one of the witnesses of the will or, if the will is hand-written, 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 notified to potential heirs, and any other relevant documents. It is essential to prepare these documents accurately and completely to avoid any delays or problems during the procedure. An estate planning lawyer can help you by ensuring compliance of the documentation.

4. Hearing before the court

Once the probate application has been filed with the required documents, a court hearing will be scheduled. During this hearing, the judge (or a special court clerk in most cases) will examine the documents and evidence presented to ensure the validity of the will.

Heirs and interested persons may also be present to raise possible challenges to the will. You must allow several weeks to obtain the probate judgment.

5. Issuance of the probate judgment

If the court is convinced of the validity of the will, it will issue a judgment of probate. This judgment confirms that the will has been probated and declared valid and authorizes the liquidator of the estate to begin the process of settling the estate in accordance with the provisions of the will.

6. Probate by a notary

If you do not want to go to court, you may be able to have the will probated before a notary. Probate by a notary does not “convert” the will into a notarial will. The probate of a will by a notary has the same legal effect as a court probate decision. A notary may probate the will on the condition that it was not filed with the notary’s firm and that the notary does not work and has not worked at the office at which the will was filed.

However, you should know that the notary will not be able to probate your will if it has been contested.

WHAT ARE THE COSTS ASSOCIATED WITH PROBATING A WILL?

The costs associated with probating a will can vary depending on several factors, including the complexity of the estate, the amount of assets involved and the fees payable.

Legal costs include the fees of the lawyer or notary who assists you in the probate procedure. These fees may vary depending on the nature and complexity of the estate. When filing the probate application, court fees must also be paid.

THE ESTATE DURING THE PROBATE PROCESS

 The estate is “frozen” during the probate process. After the will has been probated, the liquidator and the heirs can get “certified” (official) copies of the will from the court clerk or the notary, if there was one involved. 

CONCLUSION

Probating a non-notarial will in Quebec is a crucial step to ensure the validity and execution of the last wishes of a deceased person. By understanding the different wills, probate steps and costs associated with probate, you will be better prepared to plan the distribution of your estate after your death. First and foremost, you may obviously want to consider having a notarial will to avoid probate in the future.

Do not hesitate to consult us for personalized legal advice based on your specific situation.