DELAYS OF THE ESTATE
You must ask yourself essential questions when the death of a loved one occurs, such as:
1-Does the deceased have a last will and testament?
2-Are you an heir?
3-Has the inventory of the estate been executed and performed? Have you been informed?
4-Was the Deceased a minor or a protected person of full age?
5-Are the personal objects of the Deceased in the hands of someone else?
As much as your quality and interests in the estate is important, it is also vital to inform yourself of the delays in estate matters as it can make the difference between your option to accept an estate or to renounce to the estate.
Delays or the legal term, prescription is the loss of a right due to the passage of time.
Especially in estate matters, the prescription delays must by analyzed on a case-to-case basis as follows:
1st case: Exercising your option to accept or refuse the estate: 6 months
The heir has a delay of six (6) months, from the date his right arose, to exercise his/her option to accept or to refuse the estate. If the heir knows his/her quality and does not renounce to the estate within the delay, he/she is presumed to have accepted
(Art. 632-633 Civil Code of Quebec).
2nd case: Deemed to renounce the estate: 10 years
If the heir ignored his/her quality because he/she has not been informed or because his/her quality has not been declared for 10 years, from the date his right arose, he/she is deemed to have renounced to the estate and his/her right to the estate will be prescribed.
(Art. 650 Civil Code of Quebec)
3rd case: Refusal or neglect regarding inventory by heirs: 60 days following 6 months of deliberation or court proceedings for replacement of liquidator
If the heirs knowing that the liquidator refuses or in neglecting to make the inventory, themselves neglect for 60 days following the expiration of 6 months for deliberation either to proceed to conduct the inventory or apply to the court for replacement of the liquidator to enjoin the liquidator to proceed with the inventory, become liable for the debts of the succession beyond the value of the property they take.
The estate is presumed to be accepted.
(Art. 640, 800 and 801 Civil Code of Quebec).
4th case: Deemed acceptance of the estate if heir of a minor child or protected person of full age
If you are the heir of a minor or of a protected person of full age, you are deemed to have accepted the estate, except if you express your renunciation within the time frame for deliberation and option.
(Art. 638 Civil Code of Quebec).
5th case: Deemed acceptance of estate if comingling of personal assets with the estate
If the successor exempts the liquidator from making an inventory or mingles property of the estate with his/her personal property, entails acceptance of the estate unless the property was mingled prior to death.
Heirs become liable for the debts of the estate beyond the value property they take when there is comingling of the estate.
If the comingling is done after the inventory but before the end of the liquidation, the heirs become personally liable for the debts up to the value of the comingled property.
(Art. 639 and 801 Civil Code of Quebec).
6th case: Creditor claim for financial support: 6 months
Every creditor of support may within a period of six (6) months upon death of the deceased, claim financial support from the estate.
The amount of the contribution is equal to the value of six(6) months of support but shall not exceed the lesser of the value of six (6) months of support and ten(10%) of the value of the estate.
There are certain criteria for fixing the contribution when taking into consideration the needs and means of the creditor to claim financial support.
(Art. 684, 686 and 688 Civil Code of Quebec)
7th case: family patrimony/partnership of acquests/Compensatory allowance: 1 year
The delay allowed to the surviving spouse/husband or descendant to accept or to renounce to the division of the partnership of acquests and of the family patrimony, as well as for the compensatory allowance, is of one (1) year.
The amount of the contribution is equal to twelve (12) months of support but shall not exceed the lesser of the value of twelve (12) months of support and ten(10%) of the value of the estate.
There are certain criteria for fixing the contribution when taking into consideration the needs and means of the spouse/husband or descendant to claim alimentary support.
(Art. 423, 469, 685, 686, 688 and 2928 Civil Code of Quebec)
8th case: Inventory: 6 months
The liquidator must do the inventory as quickly as possible. However, it is logical to conclude that the liquidator must conduct the said inventory in the same delay of six (6) months from the date of the opening of the estate.
It is important to remember that there are sanctions provided at articles 640, 800 and 801 of the Civil Code of Quebec regarding the heirs of bad faith who comingle assets with personal property or a liquidator that refuses or neglects to conduct an inventory.
9th case: rendering of account: once per year
If the liquidation extends over a year, the liquidator must, at the end of the first year, and after that, at least once per year, render a proper accounting of his/her administration of the estate to the heirs, creditors and legatees by particular title.
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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.