Inheritance Lawyer: Understanding the Role
The estate lawyer establishes the rules for the transmission of the inheritance to the principal heirs. The terms and conditions of the distribution of the assets are set out in black and white in the will, as determined by the testator during his lifetime. The succession is never safe from disagreement, or even litigation, between the principal heirs. The often biased distribution of the estate, which is detrimental to certain heirs, explains the tensions. Thus, the presence of a lawyer is inevitable. How can the professional contribute to the succession process?
Understand everything about the succession and its mechanism
Also called inheritance, succession defines the transmission of goods by legal means.
What is succession?
After the death of a family member, the property of the deceased belongs to all the heirs mentioned in the will. In legal terms, these assets are in joint ownership. All individuals of legal age organize the transmission of their property by way of a gift or a will. Otherwise, the legislator will take care of the task. It prescribes the mode of transmission of property based on the legal transmission.
After his death, the totality of the property, that is, the inheritance of the deceased is the object of a distribution. The distribution also affects his rights and shares. His or her property is distributed to several individuals who are called heirs.
Following the death of the deceased, the notary is responsible for opening the succession, in the absence of a mandatary (an executor or an heir) specially designated by the testator during his lifetime. Also, the notary makes the inventory, lists the assets of the estate (movable and immovable property) as well as its liabilities (debts and obligations).
Finally, it should be noted that the heirs remain undivided owners (equal owners) of the property until the operations are completed.
What is the difference between inheritance and succession?
Donation and inheritance are related to the transmission of assets. Indeed, these terms are often confusing, but reveal some nuances. Donation limits the scope of the rights to be paid. Succession, also known as inheritance, passes on a person’s property after death. Thus, inheritance and succession refer to a single process.
The settlement of an estate is contextual. The steps are specific to each case. However, they all share the same payment deadline of 6 months. Payment is subject to interest of 0.20% for each month of delay.
The surviving partner or the surviving civil union partner is exempt from paying inheritance tax.
What are the frequent conflict scenarios in inheritance?
The dispute usually arises from unbalanced measures in the will, life insurance, donations and undivided property. In addition, the deceased has drafted a will that disadvantages an heir. The latter then seeks the help of a lawyer in inheritance law. The latter will assert his rights and study the will. Without an out-of-court settlement, the lawyer takes the matter to court.
Another scenario describes a person with a comfortable income who has gone bankrupt, but has life insurance. Upon his death, his partner is excluded from the coverage and takes this injustice to the appropriate authorities, with the help of a lawyer.
A person makes multiple donations on behalf of several co-heirs. Upon his death, his relative or partner asks for a reinstatement of the donations in order to restore the equality of the inheritance, which causes an internal conflict.
Please note that the Canadian government can help you make a will: Article.
What is the time limit for succession?
The declaration of succession is made within 6 months after the day of death. The countdown begins the day after the death.
In the declaration, the heirs register :
- The identity of the deceased ;
- The donations ;
- The assets ;
- The liabilities of the estate;
- The testamentary dispositions.
A delay or failure to file will lead to interest on late filing at a rate of 0.40% per month of delay. A delay of one year leads to an increase of 10%.
Moreover, if the declaration of inheritance is contested and there are no heirs to the estate, the deadline is extended.
Getting help from a lawyer or a notary for an inheritance
The heirs have the choice between the services of a notary and a lawyer to obtain legal assistance in the succession process, but which one to choose for a dispute or question relating to succession law.
Requesting the services of a notary
The notary is the primary lawyer to seek out when dealing with estate needs. His or her primary role is to determine the assets of the estate. He then declares the estate for tax purposes. He or she follows the rules of devolution of the estate among the heirs.
The notary also draws up the deeds and helps verify the wills. He also handles testamentary trusts, estate planning and estate freezing. These steps are part of the estate planning process and are only necessary for the distribution of a large and complex estate.
Calling on a lawyer specializing in estate law
The notary has no legal authority to represent clients in an estate matter that turns into a dispute. This mission is the responsibility of a family law lawyer. He will act as an advisor and representative of the client. He will resolve conflicts between heirs and conflicts with a third party in order to protect the assets of the estate.
The lawyer also handles the drafting of the will before witnesses. Since the lawyer is not a public official, his wills are not notarized. However, his wills remain valid. The lawyer then registers the document in the Register of Wills of the Quebec Bar.
The legal expert provides advice on estate planning. The law firm lists the various options available to you and guides you towards the best estate strategy.
Why hire a lawyer for an estate?
Hiring a lawyer provides certain benefits to the troubled heir.
Secure the heir’s rights in the will
As a general rule, the validity of a will is subject to a few conditions. The document may not derogate from the principle of the reserved portion of the estate. In other words, the descendants of the deceased as well as the surviving spouse have a mandatory share in the estate. The testator distributes only his remaining estate, called the available portion.
Some heirs feel disadvantaged in the distribution of the assets in the will. They then challenge the decision in court and express their disagreement even if the document is notarized.
The absence or deletion of the inheritance of a legitimate heir constitutes an infringement of his reserved portion. The intervention of a lawyer then becomes important. He or she takes legal action to reinstate the wronged heir in the list of beneficiaries.
The heir may also notice and reveal the psychological instability of the testator at the time the will was drawn up. With the help of the lawyer, he then asks for the cancellation of his last will and testament.
Avoiding litigation
You can request the services of a lawyer for the drafting of your will. In this case, the lawyer will play the role of advisor to your estate. He or she will formalize the content of the document and thus guarantee its application and validity.
The services of a lawyer avoid conflicts at the time of the succession. They preserve the relationship between the heirs and ensure that your last will and testament is properly drafted.
Businesses that use several companies are faced with complex problems. The presence of a lawyer will facilitate the management of the business assets and even the personal assets of the heirs.
Easing tensions between heirs
Succession is always a source of family conflict. The role of theestate lawyer is to establish a consensus between the different parties. He tries to encourage dialogue and listens to the different versions in order to reach a fair agreement.
The legal expert tries to find a balance in the succession issues and resolves the conflict amicably. His diplomatic approach avoids the need to go to court, reduces litigation and prevents the breakdown of the family union. His approach also aims to obtain the satisfaction of the parties involved.
Preserving the interests of the heir
Theinheritance lawyer assists you in the succession process. He accompanies you from the drafting phase of the will to the distribution of the property.
In addition to his role of accompaniment, he also assumes the role of controller. In the interest of his client, he remains on the alert for the slightest action likely to harm his interest. To this end, he establishes the necessary preventive measures throughout the succession procedures.
The lawyer implements the necessary measures to validate the will while complying with the hereditary reserve.
The intervention of a lawyer in a succession case
Do you still have doubts about the will, the inheritance, the legacies? Ask your lawyer for advice. He will evaporate the doubts and answer all your questions.
What does the lawyer do in general?
In matters of succession, your lawyer provides a range of services:
- Verification and possibly contesting the will;
- The treatment of disputes;
- Settlement of the estate;
- Analysis of the will’s provisions;
- Determination of heirs;
- The liquidation of matrimonial rights;
- Settlement of the inheritance ;
- The inventory ;
- Administration of the estate’s assets;
- Collection of debts;
- Determination of the deceased’s patrimony;
- Publication of notices.
In the event that a liquidator deliberately appropriates the property of an estate, the lawyer will act on your behalf for its restitution.
He will help you clear up any doubts you may have about the mental capacity of the testator, the need for witnesses when drawing up the will, the steps to be taken when drawing up the will and the rights of each heir.
What does a lawyer do in a difficult estate?
The death of a loved one or parent and the period of mourning disrupts the heirs and slows down the succession procedures. The help of your lawyer will relieve you of a considerable burden. He or she will provide a complete analysis of the situation. He or she will comb through the variables and disruptive elements that are hindering the settlement: the surviving spouse’s claim, the number of heirs, discord among heirs, assets located abroad..
Your legal representative will struggle to obtain your share in the estate. He will bypass the problems of contestations, the complex clauses of the life insurance, the reports of previous donations..
His approach starts amicably. If the attempt at dialogue fails, he refers the matter to the judge of the judicial court in order to accelerate the procedures. Only the latter will decide on the steps to be taken to resolve the succession conflict.
