Your Will And The Legal Ramifications Of Death

Will & Testament PhotoHOW DEATH WILL AFFECT YOU

 

When a loved one dies, the grief that follows is often overwhelming and difficult to bear. I know this feeling all too well as my stepfather passed away in 2013 after a COPD diagnosis and several recurrences of cancer.

If you’re a surviving spouse or a very close relative, the responsibility may fall on you to oversee the funeral arrangements and burial or cremation rites.

During this time of mourning, it isn’t likely to be a forethought whether or not the deceased had a will, significant assets or debts.

Settling an estate cannot be delayed for long however. Regardless of whether the deceased lived alone or had a surviving spouse, someone will need to assume the great task of sorting through the person’s financial life and personal belongings. This is in order to meet the law’s requirements on the settling of an estate.

 

Last will and testament

 

Upon the death of the individual, one of the first questions that needs to be asked is if the deceased had a valid last will and testament. In Canada, there are commonly three types of wills used.

 

  • Formal Will:  this is a typed document that outlines one’s wishes that must be signed by the person in the presence of at least two witnesses. Note that the witnesses cannot be beneficiaries or the spouses of beneficiaries. Formal wills are usually drafted by a lawyer as they are familiar with the proper wording and can ensure that all issues are addressed.

 

  • Notarial Will:  similar to a formal will, a notarial will is solely used in the province of Quebec. The document is prepared by a notary and signed before the notary in the presence of a minimum of one witness. The witness may be a beneficiary or the spouse of a beneficiary.

 

  • Holographic Will:  this is a handwritten document, signed by the person with no witness required and a holographic will must be probated by a court or a notary if done in Quebec. This option is potentially the most problematic because holographic wills can be lost, damaged or destroyed. They are often subject to misinterpretation and can be more easily challenged in court. Check with your provincial government as some provinces do not recognize a holographic will as a legal document.

A cheaper option is using a Do It Yourself Will Kit which uses a software program to generate pre-printed forms. It’s up to you to review the legal terminology that is pre-written with this option. If a will is not worded correctly, it can render some of the provisions invalid according to the law.

 

My Experience In Executing A Will

 

In my situation, my stepfather had listed me in his will to serve as the executrix of his succession. A succession is the term used for an estate in Quebec. He had also named his brother as an alternate executor in the event I predeceased him or if I chose to not accept the role.

My role as the executrix was time-consuming and complex. It took several months to complete everything required of me, mainly due to processing times of the government.

There were several issues to handle when it came to properly liquidating my stepfather’s estate. For those who don’t have the time, desire or inclination to handle the details, you can hire an estate planning firm to serve as the administrator.

For a fee, the administrator can help the executor/executrix to navigate all government requirements, especially for large and/or complex estates. I initially consulted with the family notary and accountant to clarify a couple of points but I felt confident enough to handle the responsibility mainly on my own.

The following is a summary of the key responsibilities that I fulfilled in the role of executrix for my stepfather’s estate.

  • I asked the funeral home to conduct a notarial search in order to determine if the copy of the will I had was truly the most recent one. The funeral home also filed the request for the Act of Death (death certificate) with the provincial government. These administrative services among others were purchased as part of the funeral costs.
  • The funeral home requested to the Quebec government the $2500 maximum death benefit payable for expenses related to his death.  I received the cheque in about 4 weeks from the time it was requested. Note that this amount must be declared as income on the deceased’s final tax return. Check with your province to find out if they run a similar death benefit initiative.
  • I notified both the provincial and federal governments of his death and ensured that they received a copy of the Act of Death (death certificate) along with a copy of the will. It took both government agencies about 4 weeks to enter on record that I was the executrix of his estate.
  • I requested the cancellation of his SIN, medicare card, passport and other hospital cards and forms of ID.
  • I visited each financial institution he had dealt with in order to close accounts and inactivate debit and credit cards.
  • I opened an estate account and transferred the assets from his closed accounts. Assets were held until I was ready to distribute the proceeds.
  • I called around to various companies to cancel any services he had contracted for.
  • I completed a written inventory of his personal belongings, financial assets and liabilities.
  • I reviewed his tax return for 2012 and a 2013 tax return to report his death before my accountant submitted them. Please refer to the government’s guidelines and timeframe on when to submit a deceased final tax return.
  • After I received the tax assessments and paid any amounts owing, I applied for a clearance certificate from both the Federal and Quebec government. This step was important because this certificate, once granted, proved that any amounts owing to the government had been paid. I also felt more comfortable in distributing the proceeds of the will after obtaining the clearance certificates. Note that it can take between 6 – 12 months before you receive the clearance certificate.
  • My last act in the role of executrix was to pay any amounts owing to creditors, and distribute the net proceeds to the beneficiaries. I required a signed statement from each beneficiary that they received their share. I then closed the estate account.

 

Dying intestate (Without A Will)

 

Someone who dies without a valid will in Canada is one who dies “intestate”.  This means that the provincial government will be the one to decide how the deceased’s assets will be divided.

Every province has their own rules to define who can benefit from the estate and by how much. Normally the legal surviving spouse and biological/adopted children become the beneficiaries.

Note that some provinces do not recognize a common-law spouse and this may lead the common-law spouse to petition the court for financial support as a dependent.  This decision can force the estate into litigation and result in a loss of money for the eventual inheritors.

Because the government cannot possibly know the true wishes of a deceased, you are strongly encouraged to make a legal will to ensure that your intentions are honoured.

 

Resolving Debts In A Will

 

Have you ever wondered what happens when a loved one dies and you learn after the fact that they had debts? Well it happens more often than you’d think. Besides the emotional disturbance you feel when learning that the person had financial secrets, you may worry that creditors can pursue you for repayment.

In short, nothing will happen to you directly as long as you are not contractually obligated towards their debt. In other words, once you have never signed your name to a debt, you cannot be held liable to pay someone else’s debt – even that of a deceased spouse!

If you are ever contacted by a creditor to repay a debt you are certain you do not owe, ask them to provide you with a copy of the contract with your signature.

For a creditor to successfully collect on a debt, the estate of the deceased must have assets. The assets will be liquidated in order to pay any creditor that has legally proven that the debt belonged to the deceased. A payment to a creditor must be done prior to the distribution of any remaining assets to the beneficiaries.

Once it’s proven that the estate has no money, the creditor will have no other alternative but to write off the debt. It is always wise to consult a legal professional before making any decisions concerning the debts of a deceased.

 

A Final Word Enacting A Will

 

Please consider that this article was written for general information purposes and in part based on my personal experience. With time, the law and government procedures relating to the event of a death may change.

For more information on wills, consult with a lawyer or a notary if you reside in Quebec. The provincial and/or federal government website may offer a free guide of what to do in the event of a death. As well, many Canadian banks and credit unions offer fee based trust and estate planning services along with free will planning guides that can be downloaded from their websites.

For detailed information on a federal clearance certificate, visit the CRA website. Residents of Quebec can consult the Revenu Quebec website.

 

About the Author:

Kassandra Dasent is a self-employed wife and step-mom striving to live life beyond what money can buy. In addition to working as a freelance writer and business consultant, Kassandra blogs at More Than Just Money about a variety of topics and personal experiences that all intersect with money.

 

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Comments

  1. Christine Weadick says:

    Excellent article!! My husband and I both have wills and have for years. It’s been updates a time or two as well. I think the last time was when our younger son was in his teens as we still had to name a guardian for him. He is now 26 so it’s no longer an issue. Our daughter has a will as well because she is the sole support for our 5 year old grandson and she has named a guardian for him but should anything happen to her we would be in court to get physical custody as fast as possible. I have met and like her choice of guardian but there is no way in hell any of us want to see the boy go to his father. I’ll fight that tooth and nail.
    My Dad was executor when my Mom died and I’m an only child but I am pretty sure he has trust funds set up for me and my 3 adult children. I know who his lawyer is so I know where to start looking for the will and such there.
    As my husband has an illness that will eventually kill him we have talked about things here including the fact he wants his body donated to the local medical school. I am well acquainted with our lawyer, accountant and the personnel at the funeral home up the street. Should I need any advice from some one besides these people I know I can talk to my sisters-in-law as they felt with the estate when their Mom died.
    Thank you for your perspective on this issue that most of us will have to deal with at some point in our lives….

  2. Christine, you bring up a very good point that wills should be reviewed time you have a major life changes. I am sorry to hear of your husband’s illness yet it is encouraging that you and he have spoken of his wishes and that you have legal and family support system to assist you. Thanks for your comment.

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