When a loved one passes away, the priority or concern is rarely to determine the financial consequences of an estate. However, it is very important to know your rights and obligations regarding the status of an heir.
First, under article 630 of the Civil Code of Québec[1]: “Every successor has the right to accept or to renounce the succession.” Furthermore, article 632 of the Civil Code of Québec[2] states the following:
A successor has six months from the day his right opens to deliberate and exercise his option. This period is extended by right by as many days as are necessary to allow him 60 days from the closing of the inventory.
During the period for deliberation, he may not be condemned as an heir unless he has already accepted the succession.
In addition, article 633 C.C.Q.[3] also states:
A successor who is aware of his status and does not renounce within the period for deliberation is presumed to have accepted, unless the period is extended by the court. A successor who was unaware of his status may be compelled to opt within the period fixed by the court.
A successor who does not opt within the period fixed by the court is presumed to have renounced.
Consequently, under these articles of law, the period is six (6) months to exercise the option to accept or renounce the deceased’s estate. The 6-month period begins from the knowledge of the status of heir since the opening of the succession, which is normally the death. Renunciation or acceptance concerns all the property of the estate[4].
Furthermore, to exercise their option, the heir must be able to opt in a free and enlightened manner and with full knowledge of the deceased’s patrimony.
The Civil Code of Québec provides for several rights and obligations of the liquidator toward the heirs, including the following:
776. The liquidation of an abintestate or testamentary succession consists in identifying and calling the successors, determining the content of the succession, recovering the claims, paying the debts of the succession, whether they are debts of the deceased, charges of the succession or support debts, paying the particular legacies, rendering an account and delivering the property.
794. The liquidator is bound to make an inventory, in the manner provided in the Title on Administration of the Property of Others.
796. The liquidator informs the heirs, the successors who have not yet opted and the particular legatees, as well as the known creditors, of the registration of the notice of closure and of the place where the inventory may be consulted. If it can be done easily, he transmits a copy of the inventory to them. [5]
In the absence of exercising the option to accept or renounce the estate within the six (6) month period, a presumption of acceptance applies, unless an extension of time is granted by a court. However, case law has established that this period cannot, in total, exceed eight (8) months[6], due in part to article 640 C.C.Q.[7] which states the following:
640. A succession is presumed accepted where the successor, knowing that the liquidator refuses or neglects to make an inventory, neglects to proceed with it himself or to apply to the court to have the liquidator replaced or to have him ordered to do so within 60 days following the expiry of the six-month period for deliberation.
The courts have therefore interpreted from this article that the responsibility for making the inventory lies with the heirs. Thus, failing to demand the production of the estate inventory from the liquidator within the prescribed period, acceptance of the estate is presumed.
Furthermore, it should be specified that the maximum period is eight (8) months in the event that the inventory of property was submitted at the expiry of the six (6) month period. That is to say, if the inventory is submitted in the 4th month, the period to accept or renounce is six (6) months.
Finally, particularly if a doubt arises as to the solvency of the estate, it is necessary to insist that the inventory of property be made and therefore to make a free and enlightened decision regarding your option to accept or refuse said estate.
In addition, you must demand that this inventory be made within the six (6) month period. Otherwise, you benefit from an additional 60-day period to either prepare the inventory yourself or to demand before the courts a change of liquidator or the preparation of this inventory.
Failing to comply, you will be presumed to have accepted the estate and therefore you will be responsible for its liabilities.
In the event that the eight (8) month period has already expired, certain remedies are available to you to request an extension of this period. However, this significantly complicates your situation since you will have the burden of demonstrating that you have serious reasons to invoke the extension of time. For example, the courts have considered that “the case of a complex estate whose very inventory could not be completed within a reasonable time, illness or distance” or the impossibility of acting sooner constituted serious reasons to request the extension of time under articles 632 and 640 C.C.Q.[8] However, in these situations, the burden of proof belongs to you and your involvement will be much more required.
Thus, if you are an heir to an estate, it is very important to be aware of and respect the deadlines established by the Civil Code of Québec to exercise your right of option to accept or renounce the estate.
[1] Civil Code of Québec, CQLR, c. CCQ-1991 (hereinafter “C.C.Q.”), art. 630
[2] Id., art. 632
[3] Id., art. 633
[4] Bédard v. Crégheur, (C.A., 1983-08-16), SOQUIJ AZ-83011167, J.E. 83-930, [1983] C.A. 641
[5]Supra, note 3, art. 776-796
[6] Lavoie v. Lavoie, (S.C., 2015-06-30), 2015 QCCS 2966, SOQUIJ AZ-51189763
[7] Supra, note 5, art. 640
[8] Id.
