Estate settlement – Frequently asked questions

Estate settlement – Frequently asked questions

Q. How can we provide proof of death? 

A. Only the act of death issued by the physician, coroner or Funeral Director is legally recognized as proof of death.

Q. Who’s in charge of settling the estate?

A. The liquidator appointed in the will is in charge of settling the estate. If there is no will or no liquidator appointed in the will, a liquidator may be designated by the majority of the heirs. If not, the court will appoint one.

In default, the heirs as a group will act as liquidator.

Q. Can the person appointed liquidator refuse this responsibility?

A. A designated liquidator is not bound to accept this responsibility unless he is the sole heir. The sole heir who refuses the estate can also refuse to be liquidator. If the person refuses, he should do so in writing to avoid any liability regarding the estate settlement.

There is no specific deadline to accept or refuse to take on this responsibility. A reasonable time limit would be between 1 and 6 months.

Q. Can the liquidator resign?

A. Even if the liquidator has accepted this responsibility, he can resign at any time for serious reasons. If he resigns, the liquidator must notify the heirs in writing since he is liable for any damage sustained by the heirs if there is no valid reason for his withdrawal or if it occurs in an untimely manner.

Q. Does the liquidator have a time limit to settle the estate?

A. The Canadian Charter of Rights and Freedoms allows the liquidator to continue in office as long as it takes to settle the estate. Generally speaking, 6 months to a year is required for all the procedures. A very simple estate can be settled within 3 months, while a more complex estate settlement can take up to 3 years.

Q. Can the liquidator also be an heir?

A. Yes, the testator can appoint one of his heirs as liquidator.

Q. Can the liquidator be compensated?

A. If the liquidator is one of the heirs, he can request compensation as long as the testator provided for this in the will or the heirs agree to it. If the heirs do not agree on the liquidator’s compensation, the court can establish it.

Q. Is the liquidator bound to have the will probated?

A. If the will is notarized, there is no need to have it probated.

If it is a holograph will or a will made in the presence of witnesses, the liquidator must have it probated by the court or a lawyer who has the power to do so. When the will is going through probate, the judge, prothonotary or lawyer makes sure that the will is in fact the deceased’s will, that it is his last will and that the procedures set out by the law are respected. Once probated, the will is submitted to the court registry. It is then legally recognized and the liquidator can use it.

Q. What’s the 1st thing a liquidator must do?

A. The liquidator should conduct a will search to find out if the deceased left a will, even if the liquidator already has a will (notarized or not) in hand and that he is certain that this will is the deceased’s most recent will. If no will was found the liquidator must look through the deceased’s personal papers or safety deposit box.

Q. What should we do with all of the deceased’s cards?

A. Each organization or company has its own requirements when it comes to cancelling or destroying its cards. It is better to contact each one to find out what to do.

Q. Who’s responsible for paying the funeral expenses, probate fees and estate administrative expenses?

A. These fees are payable by the estate, not by the person who took care of it. However, often the person who signed the contract with the funeral director also agreed to personally pay for these expenses.

Q. Is the liquidator entitled to reimbursement of expenses incurred in fulfilling his office?

A. Yes. Expenses related to the settlement of the estate are chargeable to the estate.

Q. Currently, does a legacy made to a spouse during the marriage become null with divorce?

A. A legacy made to a spouse prior to the divorce usually becomes null with divorce, unless the testator indicated his intention to maintain the legacy. Case-law has opened the door to the recognition of terms favoring a spouse, even after divorce. To avoid any problem of interpretation, it is preferable to modify the will accordingly.

Q. Does a legacy made to a spouse during the marriage or civil union become null with separation?

A. No, a legacy made to a spouse during the marriage does not become null with separation. However, a judge can modify gifts mortis causa under the marriage or civil union contract. To avoid such a situation, it is preferable to modify the will accordingly.

Q. Is the deceased’s lease cancelled by his death?

A. No, the death of a tenant does not automatically cancel the lease. A notice must be submitted to the lessor.