Determining heirs: Who inherits?
Potential heirs are determined based on their relationship to the deceased. The law establishes a clear hierarchy:
- Descendants (children and grandchildren): In the absence of the deceased’s spouse, they are the first to inherit. If the deceased leaves children, they share the entire estate, in accordance with section 667 of the Civil Code.
- The surviving legal spouse (married or in a civil union): The legally recognized spouse shares the estate with the descendants, pursuant to section 666 of the Civil Code of Québec, or, in their absence, with the other successors. The surviving spouse will inherit one third of the estate, and the remaining two thirds will be divided among the descendants. Note that, as of June 30, 2025, a parental union will allow the surviving spouse to benefit from the same succession rights, subject to certain conditions.
- Ascendants (parents) and privileged collaterals (brothers and sisters): In the absence of descendants and a surviving spouse, the estate is divided equally between the ascendants and the privileged collaterals (674 C.C.Q.). Other provisions specify the devolution of the estate in the absence of ascendants or privileged collaterals.
- Ordinary ascendants and collaterals: In the absence of a spouse, ascendants, and privileged collaterals, the deceased’s ordinary ascendants and collaterals are called to the succession (s. 677 C.C.Q.). This includes grandparents, great-grandparents, uncles, aunts, cousins, etc.
- The State: In the absence of any successor, the estate devolves to the State, in accordance with section 696 of the Civil Code of Québec.
The role of the liquidator: Who administers the estate?
When there is no will appointing a liquidator, the heirs collectively assume this role or appoint one from among themselves. The liquidator’s mandate is to prepare an inventory of assets and debts, pay creditors, and distribute the remaining assets in accordance with the law (section 776 C.C.Q.).
What happens to the estate’s debts?
The deceased’s debts must be paid before any distribution of assets. The deceased’s patrimony and the heir’s patrimony remain separate until the estate is liquidated (s. 780 C.C.Q.). If the debts exceed the estate’s assets, the heirs may choose to renounce the succession within the applicable time limits. Once this decision is made, the heirs are not personally liable for the deceased’s debts.
Will search: A crucial step
Before concluding that a person died without a will, it is essential to conduct a search of the wills and mandates registers of the Chambre des notaires du Québec and the wills and mandates registers of the Barreau du Québec. This search makes it possible to verify whether there is a notarized or registered will that could change the legal distribution of assets. This search is also important to determine whether there is a more recent will reflecting the deceased’s wishes. It should be noted that only the most recent will has legal effect.
A will is not always notarized. It may be holograph, meaning it requires neither witnesses nor a specific form, other than the deceased’s original signature. In other cases, it may be made in the presence of witnesses. For this reason, it is essential to search the deceased’s personal effects and ask their relatives about the existence of a will. Checking with the deceased’s financial institution is also a useful step, to determine whether the deceased has a will kept in a safety deposit box.
Acceptance or renunciation of the succession: A choice for heirs
Each heir may accept or renounce their share of the succession. Here are some common reasons why certain heirs choose to renounce it:
- The estate is insolvent (debts exceed assets).
- The heir does not wish to be involved in administering or distributing the assets.
- In other cases, this renunciation may result from a desire to avoid family conflicts arising from the succession.
Why draft a will?
Although the Civil Code provides a clear and precise framework for successions without a will, drafting a will can greatly simplify the process and help avoid family conflicts. A will makes it possible to appoint a liquidator, specify how assets are to be distributed, and include common-law spouses or other beneficiaries not recognized by law. Moreover, testamentary freedom is a fundamental principle of Canadian law. It is an opportunity for any individual to clearly express their wishes regarding the succession of their assets.
Conclusion
A death without a will in Quebec results in the distribution of assets according to the strict rules set out in the Civil Code of Québec. While these provisions are intended to ensure a fair distribution, they may also lead to complications or disagreements among the heirs and the deceased’s loved ones. To avoid these difficulties, it is recommended to draft a will that reflects your wishes and protects your loved ones. If you have any doubts, do not hesitate to consult a qualified lawyer practising in estate law, who will be able to guide you diligently.
