Real Estate 101
Vice caché in Quebec: The Four Conditions and Your Recourses
The water arrives in the spring, in a finished basement bought the previous fall. The first reflex is to call a …
A will written by hand can freeze an estate for weeks. Insurance sold by the lender repays the bank and pays the survivor nothing. And no property changes hands before a notarial deed is published in the Registre foncier, Quebec’s land register. Here are the instruments that get signed while everything is still fine, and the couple’s status that decides what they actually do.
What follows is general information: your notary remains the reference for your own file.
The three forms of will, and the one that avoids verification
Article 712 of the Code civil du Québec leaves only three doors open. A will can be made only in notarial form, in holograph form, or before witnesses.
- Notarial. Received en minute by a notary assisted by one witness or, in certain cases, by two witnesses (art. 716).
- Holograph. Written entirely by the testator and signed by them, otherwise than by a technical means (art. 726): a document typed on a computer is not one.
- Before witnesses. Written by the testator or by a third party, then signed in front of two witnesses of full age who sign immediately afterward (art. 727).
The difference gets paid for after the death. Article 772 provides that a holograph will or a will made before witnesses is verified, at the request of any interested person. The notarial will is not: Justice Québec confirms it does not have to be verified and that the original stays with the notary. Éducaloi puts verification fees at more than $1,000 before the court and more than $1,500 with a notary, and writes that the estate is necessarily frozen for the whole process.
Another advantage: the notarial will is entered in the Registre des dispositions testamentaires of the Chambre des notaires du Québec, so it gets found. The liquidator must in any event search for whether the deceased made a will and, if so, have it verified (art. 803).
What actually passes on at death, according to the title
Nothing passes to the survivor merely because they are on title. The heirs are seized of the patrimony of the deceased from the moment of death (art. 625). What passes on, then, is only what the deceased held, and it is the land register that says so.
| Title at the time of death | What falls into the estate |
|---|---|
| Home in the deceased’s name alone | The whole property |
| Undivided co-ownership between two | The deceased’s share only |
| Home in the survivor’s name alone | Nothing, but the mortgage stays whole |
In undivided co-ownership (indivision), each co-owner has, with respect to their share, the rights of an exclusive owner: they may alienate it or hypothecate it, and their creditors may seize it (art. 1015). The survivor therefore becomes an undivided co-owner alongside the heirs.
The real lever is article 1030: no one is bound to remain in undivided ownership, and partition may always be demanded, unless it has been postponed by agreement, by a testamentary disposition, by a judgment or by operation of law. Two written documents therefore postpone that right: a convention d’indivision, for 30 years at most and renewable (art. 1013), published in order to be set up against third parties (art. 1014), or a clause of the will. Its other useful clauses are detailed in buying property together and undivided co-ownership.
Lender’s insurance or a personal policy: who gets the money
The question is not the amount, it is the beneficiary. Article 2455 is clear: the sum insured payable to a beneficiary does not form part of the succession of the insured. Conversely, insurance payable to the succession, to the successors or to the heirs forms part of that succession (art. 2456), and therefore serves first to pay the debts.
Insurance sold by the lender follows the debt: it repays the balance of the loan. The survivor receives nothing, and the property enters the estate free of its hypothec, which increases the heirs’ share. If the survivor is not an heir, they paid premiums to enrich someone else’s estate.
A personal policy pays the sum to the person named. It can even secure the loan without handing everything to the lender: a hypothec on rights resulting from a contract of insurance confers rights on the hypothecary creditor only up to the amount of the balance of the claim, the interest and the accessories (art. 2462). The rest goes to the designated beneficiary.
Exemption from seizure depends on status. Where the designated beneficiary is the married spouse, the civil union spouse, a descendant or an ascendant of the policyholder, the rights conferred by the contract are exempt from seizure as long as the sum has not been received (art. 2457). A conjoint de fait, a common-law partner, even in a union parentale, is not on that list.
Lapse works the same way. Divorce, nullity of marriage, dissolution and nullity of a civil union render null any designation of the spouse as beneficiary (art. 2459). Nothing of the kind follows the separation of common-law partners: the ex remains the beneficiary until the designation is changed in writing.
Public plans do not close the gap. The Retraite Québec death benefit is a maximum of $2,500, payable first to whoever paid the funeral expenses if they apply within 60 days. The surviving spouse’s pension requires having been married or in a civil union, or having lived in a conjugal relationship for the 3 years preceding the death, a single year if there is a child.
To size an amount of insurance, you need what the property is worth today, not its municipal assessment: the home value estimator gives you a starting point before you call the insurer.
Death of a common-law partner: living in a home that is not yours
This is the hardest situation, and it only gets settled in advance. Outside marriage, civil union and union parentale, a conjoint de fait is not a legal heir and has no right in the other’s property. What gets prepared here is the right to live there.
- A legacy of a right of use. The right to use property belonging to another for a time and to take the fruits and revenues it produces, to the extent of the needs of the user and of the persons living with them (art. 1172). It may not be transferred or seized, unless otherwise stipulated (art. 1173).
- A legacy of a usufruct. The right to use and enjoy property owned by another as one’s own, subject to the obligation of preserving its substance (art. 1120). Granted without a term, it is granted for life (art. 1123). The survivor lives there, the children remain bare owners.
- A legacy of the property in full ownership, with an insurance amount to compensate the other heirs.
In all three cases, the will has to say who pays what. A user who has the use of the whole property is bound to make the repairs for its maintenance and to pay the charges (art. 1175), but the law settles neither the mortgage payments nor the major repairs.
The liquidator, and the real timeline before selling
The liquidator is not the owner and cannot sell alone. They act as the administrator of the property of others charged with simple administration (art. 802). To alienate an immovable, they need the consent of the heirs or the authorization of the court (art. 804). Their designation is published in the register of personal and movable real rights and, where there is an immovable, in the land register (art. 777).
| Step | What the Code civil provides |
|---|---|
| Verification | Required for holograph wills and wills before witnesses (art. 772) |
| Inventory | Mandatory, a clause dispensing with it is deemed unwritten (art. 778) |
| Notice of closure | Published in the RDPRM and in a local newspaper (art. 795) |
| Payment of debts | Nothing before 60 days, unless solvency is evident (art. 810) |
| Heirs’ option | 6 months, extended to leave 60 days from the closure (art. 632) |
| More than a year | Annual account of management to heirs and unpaid creditors (art. 806) |
The most ordinary reason an estate loses a buyer, I find in that calendar, not in the price.
The declaration of transmission and the Registre foncier
Without it, title stops at the deceased. The rights of an heir or of a legatee by particular title in an immovable of the succession are published by registering a declaration made by notarial act en minute (art. 2998). Article 2999 dictates its content, and the list is revealing: besides the name of the deceased, the date of death and the nature of the succession, it requires the capacity of heir, of married spouse or of spouse in a civil union or in a union parentale, the degree of relationship and each person’s right in the property.
The survivor’s status will therefore be written in black and white in the Registre foncier. A conjoint de fait outside a union parentale has no box there, except as a legatee. What comes next for the heirs is described in inheriting property in Quebec, and the notary works faster with a complete file.
The documents to have in place
- A notarial will for each of the two partners, kept up to date.
- The designation of a liquidator, with a replacement.
- A personal life insurance policy, beneficiary designated and reread.
- A published convention d’indivision, if there are two of you on title.
- A mandat de protection (protection mandate), for incapacity rather than death.
- The property file: deed of acquisition, certificat de localisation, mortgage statement, tax bills, home insurance.
- The list of accounts and institutions, for the future liquidator.
Éducaloi recommends reviewing this planning every 3 to 5 years, or after a separation, a new relationship or a purchase.
Frequently asked questions
My common-law partner is the beneficiary of my life insurance. Is that enough for them to keep the house? No. The sum will be paid to them outside the succession (art. 2455), but it gives them no right in the property: they will have to buy out the heirs’ share and qualify on their own with a lender.
We separated two years ago and I changed nothing. Who receives the money? If you were common-law partners, your ex remains the beneficiary. The lapse in article 2459 covers only divorce, nullity of marriage, and the dissolution or nullity of a civil union.
How long before the house can be put up for sale? The law sets the order of the steps, not their duration. No official source allows an average timeline to be given: the form of the will and the agreement between the heirs decide almost everything.
To go further, read inheriting property in Quebec and the Quebec notary process.
Want to know what the house is worth before you talk to the notary? Write to me: I will prepare a comparative market analysis for Laval, Montreal, the North Shore and the South Shore.
Georges Matar
Residential Real Estate Broker · RE/MAX DU CARTIER INC.
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