Are Quebec wills recognized?

“If the deceased owns property in the United States, such as a house, a car or an income property, the will generally needs to be professionally translated into English and probated there,” explains Salehi. “Notarized Quebec wills are recognized in the U.S., provided they are accompanied by certain information such as proof that the notary is registered with the Chambre des notaires du Québec.

“In a number of cases, however, the authorities in the U.S. state where the deceased’s assets are located will request a local judgment in order to have the will legally recognized there,” says Salehi. “In fact, in many states, the settlement of an estate is a judicial process and does not involve a notary. This process is called ‘probate.’ It means that, will or no will, you have to prove who the beneficiaries of the estate are.”

This may require the executor of the will to hire a U.S. attorney and even travel to the U.S. to attend the proceedings. This is often the case when a person holds an asset, such as property, in his or her name only.

One will or two?

To avoid this, some people have a Canadian will drawn up for assets in Quebec, and a U.S. will that meets the legal requirements of the state in which the assets are located and covers those possessions exclusively. This reduces the cost and time involved in having the Quebec will recognized by a judge. However, care must be taken to ensure that one document does not contradict the other or revoke certain clauses.

“I generally advise my clients not to multiply the number of legal documents,” says Salehi. “To avoid complications, it’s best to keep estate planning as simple as possible.”

Other options

Canadians can also make other arrangements to facilitate the transfer of their assets. For example, the drafting of an Enhanced Life Estate Deed by a U.S. lawyer ensures that the surviving spouse retains the rights to the property and then bequeaths it by will upon his or her death. Other types of joint ownership (e.g., joint tenancy with right of survivorship, tenancy in common, husband and wife) also allow the property to be treated as a type of undivided co-ownership. The property remains in the possession of the surviving spouse following death.

These options, like those for holding assets through a trust, a limited liability company or a partnership, are not just about passing on assets. They are often designed to protect the estate from certain death-related tax consequences.

“An increasing number of estates in Quebec are international in scope for reasons such as the liquidator or beneficiaries are non-residents of Canada or the deceased owned a lot of assets in a foreign country, particularly the U.S.,” says Mylène Tétreault, tax partner at Raymond Chabot Grant Thornton.

This type of estate can have tax consequences for the heirs. “It’s important to consult a tax expert specializing in international taxation beforehand, because from the day of death onwards, you have to live with the consequences of what was previously put in place,” adds Mylène Tétreault.

Quebec protection mandate not recognized

It should also be kept in mind that the Quebec protection mandate, even when translated into English, is not recognized in the U.S. If you wish to administer the property of a spouse or loved one who can no longer do so, you will have to take steps to obtain a U.S. mandate by proving that the person is ill.

It is in the best interest of snowbirds and the professional notaries who advise them to consult people who specialize in international taxation and inheritance matters, as these are highly complex areas in which missteps can be costly and cause their fair share of headaches.