Civil Law & Intestacy – it’s not that civil!

 

Civil law systems are based on Roman Law, and modern civil law systems are characterized by the use of codes that are applied by Judges. The Napoleonic Code was adopted by France in 1804 and then subsequently in many countries occupied by the French during the Napoleonic Wars. The Napoleonic code is the basis of the private law systems of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies).

The “Napoleonic Code” is also refers to legal codes like Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec), the Chilean Civil Code, the Puerto Rican Civil Code, and the Louisiana Civil Code in the United States.

The Civil Code of Québec recognises three types of wills:

  • a notarial will, which is executed before a notary and signed by a witness;
  • a holograph will, which is entirely hand-written by and signed by the testator and requires no witness; and
  • a will made before witnesses, which may be written by hand or by mechanical means, or dictated to someone, and which must be authenticated by two witnesses.

The holograph will and the will made before witnesses must be probated by the Superior Court in the judicial district in which the testator resided, in the district where the testator died, or in the district in which the willed property is located. The Civil Code provides that these two types of wills can also be probated by a notary,who has not been involved with the creation or filing of the Will.

The application to have a will probated may be made after the testator’s death by any interested person – usually the liquidator of the succession (the equivalent of an executor) – or their lawyer.

Any heir named in the Will, must be notified of the probate proceeding, except where a Court finds it would be impractical, too expensive, or unnecessary.

If the testator has not named a liquidator, the heirs may perform the liquidator’s duties or appoint a person who may or may not be an heir to do so. If the heirs are unable to agree on whom to designate as the liquidator, the court may appoint one.

If you die intestate, the Civil Code provides that the heirs jointly perform the liquidator’s duties, unless they designate a liquidator.

The Code defines intestacy as a legal succession, with the eligible the heirs being the most closely related to the deceased within the same line of successors, this means

  • the spouse to whom the deceased was married or joined by civil union (but NOT a de facto spouse) and
  • the deceased’s blood relatives (and relatives by adoption).

Therefore if you die intestate depending upon your family circumstances your estate might be divided in one of the following ways:

  • if you are married with children: Your spouse inherits one third while your children or child inherit two thirds. However if you are married with no children: Your spouse inherits two thirds and your parents inherit one third.
  • If you are married with no children and no parents: Your spouse inherits two thirds and your siblings inherit one third. If you are divorced or your spouse has died and you have children: your children inherit everything, split equally, and your parents and siblings receive nothing.
  • If You do not have a spouse and you do not have children but you have parents and siblings: Your parents inherit one half and your siblings inherit the other half.
  • If you are unmarried, an only child, or your siblings have predeceased you leaving no nieces and nephews: your parents inherit everything. If on the other hand you are single, have no children and your parents have pre deceased you: your siblings inherit your estate.
  • If (in the very unlikely event) you have no spouse, children, siblings or parents: then extended family members will be sought – it is only in the most extreme situations would your entire estate revert to the government.

A simple way to avoid this is to create a Will – this is most important where you are in a de facto relationship. That way you can direct your estate in the way you wish rather than via the legislated regulations of the code.

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s