Julie, from Ste-Anne-des-Plaines, writes:
"I have been married for 7 years. We have three children. Neither I, nor my husband, have made a will, since we have never felt the need to do so. However, a dear friend of ours recently passed away due to a tragic car accident. It appears as though she did not have a will either, which seems to have caused a great deal of issues within the family. In fact, she was not married, although she had a common-law spouse and was the mother of one child.
Since the passing of my dear friend, I have been inquiring on the subject of wills by reading various articles available on the web, but I find myself to be even more confused.
Hence, I would like to understand the specific consequences, in my particular situation, of having a will as opposed to not having a will".
In the event that either you or your spouse dies without a will, then we would face a legal or intestate succession.
As you are married, this type of succession provides that your spouse and your children are your heirs in the event that you pass away.
The partition of your estate would be done according to Article 666 of the Civil Code of Québec, which reads:
"If the deceased leaves a spouse and descendants, the succession goes to them.
The spouse takes one-third of the succession and the descendants, the other two thirds."
The term "spouse," as defined in that part of the Civil Code of Quebec, only applies to married or civil union couples. Hence, in the event that you were to pass away before your spouse, he would receive 1/3 of your estate, whereas your three children would receive and divide 2/3 of your estate. Since your friend was unmarried, her common-law spouse would not receive anything and her whole estate will pass to her child.
Finally, your spouse, in conjunction with your children, would collectively adopt the role of liquidator of the succession, unless they decide to appoint a liquidator.
Sonia Rotondo, Attorney-at-Law
Alepin Gauthier avocats inc.