Handwritten wills and wills made in front of witnesses must be probated by a court or notary after the person who signed the will dies, “Probated” means recognized as official.
Wills prepared by notaries don’t have to be probated. Wills prepared by notaries are often called notarial or notarized wills.
Reasons for Probating a Will
Probate is a procedure that does the following:
- confirms the person’s death
- confirms the identity of the person who wrote the will
- notifies people who might inherit that a non-notarial will exists so they can raise important issues (for example, that there is a more recent will), or argue against probating the will (for example, because they believe it is a fake will)
- confirms that the will is the last will of the person who died and that it follows Quebec law
To summarize, probate confirms whether the will meets the requirements for it to be legally valid. Probate does approve what the will says and it does not prevent what it says from being challenged.
How to Probate a Will
Heirs can ask a notary or the court to probate a will.
1. Probate by a Notary
Probate by a notary does not “convert” the will into a notarial will.
Probate by a notary has the same effect as probate by the court. However, a notary cannot probate a will that is being challenged, for example, if someone claims the will is a fake.
It takes several weeks to obtain the probate document. Ask a notary about the time involved.
Probate costs depend on the fees the notary charges. The total cost is usually about $1,000.
2. Probate by the Court
You must begin with a kind of request called an “application,” usually filed with the Superior Court at the courthouse in the region where the person who died lived.
You can get information on this type of application from the Justice Québec website.
Some people have a notary or lawyer prepare the application. Other people prefer to write and present it in court themselves.
It takes several weeks to obtain a probate judgment. You must pay court fees. If you use a lawyer or notary to prepare the application, you will also have to pay his or her fees. The total cost is usually about $1,000.
Documents Needed to Probate a Will
To probate a will, the notary or court needs various documents, including these:
- the original will
- an official copy of the act of death issued by the Registrar of Civil Status
- a sworn statement by one of the witnesses of the will or, if the will is handwritten, a sworn statement by a person who is able to identify the signature of the person who made the will
- proof that the application for probate has been sent to potential heirs
The Estate During the Probate Process
The estate is “frozen” during the probate process. The “estate” refers to the property of the person who died, plus amount owed to or by that person.
After the will has been probated, the executor and the heirs can get “certified” (official) copies of the will from the court clerk or the notary, if there was one involved. (The executor is the person who settles the affairs of the person who died.)
After that, the estate settlement can begin. This includes opening a bank account for the estate, closing the deceased’s bank accounts, etc.