This blog post was written by: Martine Desrosiers, Estate and Trust Consultant, Scotiatrust Montreal
In Part 1, we examined how intestacy in Québec creates procedural hurdles for minor heirs. Before any of those issues can be addressed, a more fundamental question arises: who is in charge of settling the estate?
When there is no Will, the Civil Code of Québec (CCQ) determines both who inherits and who is responsible for settling the estate. The answers are not always straightforward.
First, the law stipulates that one must be capable of exercising their civil rights to act as liquidator. A person must therefore have legal capacity to act in this role. Consequently, incapacitated persons or minors are not eligible.
The key article is Article 785 CCQ, which states that the responsibility of liquidator falls automatically to the heirs. They are therefore, by default, the liquidators in charge of settling the estate.
But who are these heirs?
Under the CCQ, the law determines who the heirs are, based on their degree of kinship with the deceased. The most common scenario is that of a deceased person leaving a spouse and children. They then all become joint liquidators of the estate. This may seem simple, but in many cases, it is not. For example, there may be children from a previous marriage who don’t get along with the deceased’s second spouse. It’s important to remember that a common-law partner is generally not considered a legal heir, unless they qualify under the parental union regime introduced by Bill 56 (effective June 30, 2025).
The estate settlement process, already complex, can become problematic when the heirs disagree, leading to disputes, delays, or deadlocks in decision-making. Disputes can slow down the process. This can be critical, for instance, when there’s an urgent need to sell certain estate assets, such as real estate or investment portfolios, depending on market conditions, or to generate cash to cover the expenses and costs associated with settling the estate.
Furthermore, some bereaved heirs may lack the motivation, knowledge, or interest to accept the task. It can seem far too burdensome for those unfamiliar with business matters, or for those who are too busy or live far from the deceased. In addition, accepting the role of liquidator can have adverse tax implications for a non-resident of Canada.
Another example is when the deceased left only one heir. Under Article 784 CCQ, this sole heir is bound to accept the office of liquidator.
What if the legally mandated designation of liquidators does not offer a viable choice or becomes problematic?
Article 785 CCQ also provides a mechanism: the heirs can designate a liquidator by a majority vote.
A majority decision must be reached to make this appointment. The CCQ does not impose any specific formalities for this appointment, but it is recommended that a notarial deed be drawn up for this purpose in order to present a document clearly reflecting the situation and the facts to third parties, such as financial institutions, insurance companies, and tax authorities.
This deed will state that the deceased left no will. It will establish the status of “heirs” within the meaning of the CCQ for the purpose of determining the beneficiaries, as well as the acceptance or refusal of the inheritance by one or more of them. They may appoint as liquidator a third party who is not an heir within the meaning of the law, as well as a legal entity such as a trust company (Article 783 CCQ).
Despite the flexibility granted by law to heirs in determining and choosing the liquidator, some families may disagree on this preliminary step in settling the estate—the selection of the liquidator—making it impossible to sign the instrument appointing the liquidator. Other circumstances may also prevent this choice, for example, is absent heirs. Article 788 of the CCQ provides that, as a last resort, the court may, at the request of an interested party, appoint a liquidator when the appointment of a liquidator cannot be made through the “normal” methods listed above. The court will then decide on the choice of a liquidator based on the circumstances.
In this case, an application must be filed with the Superior Court in the district of the deceased’s domicile. The court judgment be the document used by the liquidator to prove their right to act.
As we can see, all these steps can take time after a person’s death and generate numerous discussions and legal fees. It is far simpler, and far less costly, to name a liquidator in a properly drafted Will. A Will allows you to choose someone the Will maker trusts to settle their estate, whether that is a family member, a professional, or a trust company such as , and to provide them with clear direction on how to settle your estate. Without that planning, the CCQ’s default rules apply, and as we have seen, those rules can turn a difficult time into an even more difficult process.
This article is for general information purposes only and should not be considered or relied upon as personal legal, tax, or financial advice. Individuals should consult with their qualified advisors before taking any action based on the information contained herein.
