“He died intestate…”
“Oooooh. Sounds painful.”
In Quebec, wills are done by notaries who are kind of junior lawyers for wills and real estate transactions. The college of notaries then stores them permanently (in computer files these days). This practice simplifies probate enormously.
Notaries aren’t junior lawyers; they’re a different type of lawyers, who specialise in non-contentious matters like wills and contracts. They actually have a four year training course, not the three year one for advocates.
The Civilians are a weird lot.
Webpage for Quebec Chambre des notaires; some English text, some French.
I’m going to ask you a question - at one point that website says
The Chambre des notaires only authenticates documents that are signed by a notary. We cannot certify documents bearing the signatures of lawyers or notaries public.
What’s the difference between a notary and a notary public?
It’s been a while since my civil law degree, and I never studied anything about the notarial profession, so this is just what I’ve picked up by osmosis over the years and may not be accurate, but here goes. (@Schnitte can likely give more accurate info.)
A notaire is a trained lawyer. They have the normal three year LL.B., which the advocates have, and then an additional year of training from the Chambre des notaires, specialising in contract law and real estate (or, in civil law world, les obligations, les biens, et les immeubles). They also have additional training in wills and estates (les successions).
Notaires give legal advice in the formation of contracts, especially major commercial contracts, and also wills. Unlike lawyers in the common law system, they can act for both parties, giving advice to both parties about the transaction, and then draft the contracts to carry out the interests of both parties. Once the parties have reached an agreement, the notaire can then formally approve the contract, making it a notarial acte. An acte has greater legal status in the courts than a mere contract, because the involvement of the notaire is presumed to have ensured that all legal issues have been considered.
Notaries public in Canada are an inheritance from England, and are probably similar to notaries public in the States. A notary public doesn’t have to be a lawyer or even have any legal training. Their primary function is ministerial: they authenticate the signatures of the parties on the contract, or on other documents. However, they’re not authenticating the substantive content of the document, unlike a notaire, and haven’t been involved in the production of the document.
There are differences between notaries public in the common law world, depending on the jurisdiction. For example, common law notaries public in Canada can authenticate copies of documents themselves, as true copies, but I gather from past discussions on this board, and on Wikipedia, that notaries public in the States cannot do that. The power to authenticate a copy of a document under notarial seal is closer to the function of notaires, but still a type of ministerial function, not a substantive function.
See the Wikipedia article for more info:
ETA: Just realised I didn’t address the point raised in the quotation from the Chambre webpage. One of the functions of notaires is to keep the original of any acte they have performed. It’s considered the acte of the notaire, unlike a non-notarial contract which is created by the parties, and is the official version of the document. The notaire can provide an authenticated copy of the acte which is prima facie admissible in court.
And finally, we get back to the OP: once a notaire moves on, they transfer all their actes to the Chambre, and the officials of the Chambre can authenticate the acte, even though they weren’t the ones who did it. So if you’re looking for a will that was produced by a notaire, and that notaire is no longer around, the Chambre likely can provide you with an authenticated copy. They do not provide that service for documents produced by lawyers, or notarised by a notary public, because those two positions, don’t have the detailed training and the involvement in the production of the document that a notaire has with respect to an acte.
Pretty on point for the Notarios in Puerto Rico’s system as well, although in our case the basic coursework on civil-law obligations, real property and successions is part of the standard JD curriculum and the advanced part is elective. The notaryship exam is a supplemental part of the twice-yearly Bar Exam, graded separately, and only after admission you are then subject to separate continuing ed requirements.
Otherwise pretty much the same, you prepare the Actas Notariales and make sure you are up to date with the Registro Notarial and issues with these are the greatest single source of reprimands for lawers in our system. Used to be the notaryship was what kept food on the table in a less-litigious, lower-crime age in this Island (there’s always a land deed, will or affidavit coming in the door); nowadays quite a few of our lawyers don’t even bother with it. Upon retirement (or being named to an office that precludes you from engaging in the function, such as a judgeship or state attorney; or getting sick of it) you have to wrap it all up nice and tidy and drop it at the Inspector de Notarías.
(as a quaint perk, you do get to choose your own seal to put on your fits-in-no-cheap-printer fancy-paper documents together with the tax stamp)
(also, in the current century the Puerto Rico Notarios have become enabled to officialize civil marriages and uncontested divorces involving no dependents; that is an aspect of the job that varies in the many places that use them)
Should my will be a public record or is it sealed in some way?
I’m wondering if it should be public knowledge that my mother has disinherited me for being a heathen.
Yes indeed, notaries in the civil law countries are noticeably different from those in the common law; in the civil law tradition, it’s a much more prestigious job. They are fully qualified lawyers, and they are intended to provide impartial legal advice to both parties in a transaction where the law requires notarisation (examples for which would be real estate transactions or corporate law resolutions). Part of their job is to do what common law notaries public do, i.e., confirming the authenticity of a signature or document, but it goes far beyond that. It can also be quite lucrative; their fee is usually defined by statute as a percentage of the volume of a transaction, and access to the profession is highly regulated with a limited number of positions in any given area, so notaries can rake it a sizeable income from the transactions in their district for which the law requires notarisation. The details of how they are trained differ among the civil law jurisdictions, but typically the way it works is that after the standard legal education a dedicated additional training is necessary, following which graduates can apply for one of the limited number of positions when one becomes available.
Quite often in fictional situations, there is “the deceased’s lawyer reads the will.” Presumably, having kept a copy (or the copy) after drawing it up. Is this actually a service (presumably, optional) that lawyers (not in places with notaries) even offer at all? Presumably something an very elderly client or a rich one might arrange with an established law firm?
I see from all the discussion above it can have its own risks, and I don’t imagine most people want to pay a monthly fee for the on-going possibility it is needed. Nor would the lawyer want an open-ended liability without some compensation.
Good question. I am not sure.
Seems to me it is a legal document that becomes part of the records courts keep. Those are generally public record unless specially restricted by a court or law. But, if you write a will and stick it in your desk then a court never had any part of it.
What if I am someone the deceased owes a debt to? Am I unable to find out where the money went so I can have that debt paid? Or is it all secret and I cannot find out?
The money is in your debtors estate. There’s normally a requirement for probate for an advertisement if the death, to give creditors time to apply to be included in the process.
But once everything is distributed and the estate wrapped up, creditors can’t go after the beneficiaries. At least not in common law jurisdictions. There is some scope for that in civil jurisdictions.
I never understood this. If I have someone who owes me money is it my job to read the newspaper to see who has died every day in case that person who owes me died to get my money? Is there a guarantee that this information is even published? What if you are a credit card company? Do they have to read every newspaper in the country to see which customers of theirs died yesterday?
And, if I miss that one day it was published and the estate is settled I have no recourse to get my money? Do newspapers even do this anymore?
Put another way:
How will I know that Jane Doe (who owes me money), resident of Anywhere, USA, has died and I need to make a claim on her estate?
Usually probate takes about six months or more, so most creditors will find out just from lack of contact with the debtor, such as if payments on a credit card or line of credit stop. But yes, creditors are expected to look after their own affairs. They can’t turn up five years after the death and expect to have the estate re-created and money taken back from beneficiaries.
The probate is also registered with the county. Creditors can look at the public records to see if the debtor is mentioned.
I’ve also wondered about the newspaper thing. It seems terribly inefficient for something like that. If a city has multiple papers, does the notice have to go in all of them? What constitutes a newspaper? The weekly local rag given for free? The daily paper? Now there are newspaper websites so searching would be a bit easier than reading the actual paper, but it still seems like a weird way to do it. It seems like the county should have a public notice listing for these kinds of things.
In many jurisdictions, one newspaper is designated the newspaper for public and legal notices, so any notice to creditors must be published in that particular paper.
Generally, the law also requires the estate administrator/executor to give actual notice to known creditors. (That is, if the executor knows there’s a credit card, and can with reasonable effort figure out the name and contact details for the bank that issued it, then the executor is required to mail a notice to the bank. The public notice in the newspapers is for creditors not “reasonably ascertainable.”)
Is that what they call a “paper of record”?
It’s complicated and varies by jurisdiction.
Newspaper of Record can just mean a newspaper with high editorial/journalistic standards and large circulation. Such that “I read it in the Times” is sufficient to establish a fact as being reasonably certain.
Then there are some legally designated newspapers of “public” or “official” record that may be either special purpose publications (like a gazette published by the government itself) or a general circulation newspaper that is designated as such.
At least this was the case 30 odd years ago when I had need to deal with these issues in the US and in another country.
Things might be very different now, are there even classified ads in newspapers now?