Roger-Luc Chayer (Image : Pixabay)

Since the legalization of same-sex marriage, many laws have been profoundly changed to recognize rights that were once denied to same-sex couples: marriage, adoption, survivor benefits and many other everyday protections. Yet one aspect remains largely unknown and rarely explained: the rules governing estates and the rights of surviving spouses, which can vary considerably from one part of the world to another.

In Quebec, renouncing an inheritance is not that simple

The Quebec example is actually almost unique in the world and absolutely astonishing. Many Quebecers, like me, believe that when a parent dies without leaving a will, the surviving child is under no obligation whatsoever. If there are valuable assets, they will be distributed according to Quebec law and, if there are debts at the time of death, they will disappear. No one is required to accept an estate, even one with no value, and this is where it is important to understand that this preconceived idea is false.

As I looked into this situation, I discovered that there is an important distinction between heir, successor and liquidator, three terms that may seem similar to the average person, but which have completely different meanings under Quebec law.

When a person dies and a will appoints a liquidator, that person is responsible for settling the estate: preparing an inventory of the assets, handling the formalities, paying the estate’s debts and, ultimately, transferring what remains to the heirs. The person appointed as liquidator may, however, refuse the position. Contrary to what I initially believed, it is not mandatory to appear before a notary to refuse the position of liquidator. A written declaration can, among other things, be made with the assistance of a lawyer, and the people concerned must be notified.

But above all, it is important not to confuse this refusal with renunciation of the estate. A person may be both a successor and a named liquidator. If that person does not want to accept the estate itself, this is a different legal procedure. In Quebec, an express renunciation of an estate must be made by notarial deed in minute form or by judicial declaration, and then published in the Register of Personal and Movable Real Rights.

This distinction is important because refusing the position of liquidator does not automatically mean renouncing one’s inheritance. Conversely, renouncing an estate does not mean that the deceased’s debts disappear or that no one will have to deal with them. The estate must still be settled: the assets are assessed, the debts are paid according to the applicable rules and whatever remains can then be transferred to the heirs.

It is therefore much more complicated than simply thinking that a child can say: I want nothing to do with this estate and the matter is settled. And this is precisely where Quebec legal terminology becomes important. Being a successor, being an heir and being a liquidator are three different situations, with rights, obligations and procedures that are not interchangeable.

For someone who suddenly finds themselves confronted with the death of a parent, this distinction can make a considerable difference, particularly when there are debts, assets to be sold or an estate whose actual value is still unknown.

In the case of my neighbor Michel, he barely knew his father, who died without leaving a will. Michel believed that, since he was not mentioned in any estate document, he could simply let things go and do nothing. That was the mistake he nearly made.

Since he is an only child, there is no will, and his father died leaving numerous debts, Michel needed to quickly find out about his rights and obligations as a successor. If he failed to act within the deadlines established by law, his situation could have become much more complicated, particularly with regard to the settlement of the estate, the inventory of assets and the payment of debts.

The only way for him to ensure that he would not be appointed liquidator is to take the necessary steps to refuse the position. In his case, a declaration refusing the position of liquidator can be prepared with the assistance of a legal professional and communicated to the people concerned. Professional fees may then apply, depending on the procedure chosen.

It is also important not to confuse refusing the position of liquidator with renouncing the estate. These are two different procedures, with different legal consequences.

This is a situation that can affect any Quebecer and demonstrates one thing above all: when a loved one dies without a will, doing nothing is not necessarily an option. You must first determine whether you are a successor, understand your obligations and act within the deadlines established by law.

But what exactly is a successor?

The word successor may sound complicated, but its definition is relatively simple: in Quebec, a successor is a person who is called to receive an estate following someone’s death, whether by operation of law or under a will.

Let us take a very concrete example. A father dies without a will and leaves an only son. Even if this son had never been mentioned in a document before, he is a successor, because the law identifies him as a person called to the estate.

But be careful: being a successor does not automatically mean having accepted the estate. This is a fundamental distinction.

The successor may accept the estate and become an heir, but may also, in certain circumstances, renounce it. This possibility is particularly important when an estate has debts or when its actual value is unknown. The status of successor first means that the person is called to the estate. The person must then understand their rights and obligations and, above all, act within the deadlines established by law.

In an intestate estate, this distinction can become particularly important. A person who believes they have no role to play simply because they have never been in contact with the deceased may discover that they are nevertheless a successor and that they must make certain decisions to avoid finding themselves in a legal or administrative situation they had never anticipated.

When a successor does not know their rights

In Quebec, a person who becomes a successor normally has six months from the date of death to decide whether to accept or renounce the estate. This period may nevertheless be extended to allow 60 days following the closing of the inventory to make a decision.

The problem arises when the successor is completely unaware that they have been called to the estate. They may therefore believe that they have nothing to do, especially when they barely knew the deceased or had no contact with them.

Yet, doing nothing can have consequences. If the successor knows their status and does not renounce the estate within the prescribed period, they are presumed to have accepted it. Certain actions may also constitute tacit acceptance: for example, using estate property as though it belonged to them, releasing the liquidator from preparing an inventory or taking certain actions that are incompatible with renunciation.

This becomes particularly important when the estate has debts. In principle, an heir who accepts an estate is not required to pay debts beyond the value of the assets they receive. But certain mistakes can result in much greater liability, particularly when the rules concerning the inventory have not been followed or personal assets have been mixed with those of the estate.

The successor who does not know the law is therefore primarily at risk of making the wrong decision without even realizing that they are making one. They may miss a deadline, take an action that constitutes acceptance or neglect an important formality. This is why, in an unknown or heavily indebted estate, the instinct to say I am not getting involved can be dangerous. The first thing to determine is rather: am I a successor, what are my rights and what deadline do I have to act?

And in Michel’s case, this was precisely the question that changed everything. He could not simply assume that, because he barely knew his father and there was no will, he had no role to play. The law could assign him rights and responsibilities whose existence he was completely unaware of.

The real issue for Michel was therefore first to understand that he was a successor, to know his rights and obligations and, above all, not to let the deadlines established by law pass without taking action. In an estate involving numerous debts, ignoring one’s status and doing nothing can have significant consequences. The danger therefore does not simply come from becoming a liquidator, but rather from the risk of accepting an estate without having understood the consequences.

What if one spouse’s parent dies without a will?

Let us now consider a situation that can directly affect same-sex couples. Two men are married or in a civil union. The father of one of them dies without a will. The surviving spouse of the son is not himself a successor to his father-in-law’s estate simply because he is married to or in a civil union with his spouse. Indeed, members of the in-law family are not legal heirs in an intestate estate. Among those who may inherit are the deceased’s spouse and close relatives by blood or adoption.

But the situation can have very concrete consequences for the couple. The spouse who is the deceased’s child becomes a successor. He then has six months from the date of death to accept or refuse the estate, with the possibility that this period may be extended under certain circumstances. If he is completely unaware that he is a successor and takes no action, he risks missing important deadlines or, without knowing it, taking actions that could be considered acceptance of the estate.

And if no will was left, the heirs normally become the liquidators of the estate, unless another person is appointed. The successor’s spouse may therefore become directly involved in the administrative consequences of his father-in-law’s estate, even though he does not inherit from him. The estate will notably have to be inventoried and the deceased’s debts will have to be settled according to the applicable rules.

This is where the situation can become particularly delicate for a couple. Imagine that the successor spouse has had virtually no contact with his father and does not even know that his father had significant debts. His spouse may believe that this situation has absolutely nothing to do with him. Yet, if his partner becomes an heir and participates in settling the estate, the administrative and financial consequences can directly enter their married life.

Being a same-sex couple does not, in itself, change the succession rules applicable between a child and their parent. Since the recognition of same-sex marriage and civil unions, spouses are subject to the same rules as other couples in situations where the law recognizes marriage or civil union. But this does not turn the spouse into an heir of his in-law.

In other words, a spouse does not automatically inherit from his father-in-law or mother-in-law, but he may nevertheless be profoundly affected by the consequences of an estate that his own spouse must settle.

This is a nuance that many people do not know: in an estate, the relationship that matters is not always the one we imagine. Being the spouse of the person who inherits does not make you a successor to your in-law’s estate. But that in-law’s estate can nevertheless have very concrete repercussions on your own relationship.

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