Estate Planning- misconceptions I have given away all my assets to my children I have a will
Estate planning : Non-Tax Considerations To ensure loved ones are taken care of Transfer of assets to intended beneficiaries according to the deceased’s wishes To ensure liquidity – cash to pay funeral expenses & income taxes To avoid family disputes To expedite the settlement of estate
Estate Planning – Tax Considerations Prior to Death – tax planning to minimize taxes such as income splitting, trusts & estate freeze and will planning etc. Year of Death – to minimize income taxes payable, probate fees in the year of death
Tax Planning Ideas while Alive Income Splitting Estate Freeze Insurance Trust
Purposes of Income Splitting Taxes payable on a given amount of income will be greater if that amount accrues to one person, lower if that amount of income is split between two or more people Example: income of $490,000 Taxes payable one person- $196,000 Taxes payable four persons - $35,500 x4 or $142,000 Tax savings of $54,000
Income Splitting - Problems Attribution Rule – applicable to where an individual has transferred property to spouse or common-law partner or individuals under age 18 and who do not deal at arm’s length, the income is attributed back to the transferor For spouses & common-law partners, attribution also applies to capital gains
Income Splitting Cash gifts to children 18 or over, no attribution applies. Income earned is taxed in the child’s hands. But parents would be completely losing control over the money
Income Splitting Free or low interest loans made to children 18 or over for producing property income, there may be attribution if one of the main reasons for making the loan is to reduce or avoid tax Free or low interest loans made to children 18 or over to purchase PR is OK
Income Splitting by gifting property Parents gifting rental property to Children Parents are deemed to have the property disposed at FMV, resulting in capital gains or recapture of CCA to parents Parents would also lose control over the property Property Transfer tax on transfer of title of property other than PR
Income Splitting of Real Property If the property is occupied by the children as a PR, then parents can take back a mortgage on the property as security. No attribution would apply as there is no rental income deriving from the property
Principal Residence (PR) In general, capital gains arising on the disposition of a PR can be exempted from taxation The exempted gain = Gain x (B + 1) / Y B is the no. of years since 1971 designed as PR Y is the no. of years since 1971 the taxpayer has owned the property
Principal Residence (Cont 2) Since 1982, a family unit can designate one PR for a particular year A PR is an accommodation owned by the taxpayer that was ordinarily inhabited in the year by the taxpayer, his spouse, a former spouse or a child and is designated by the taxpayer as a PR.
Change in Use – PR to Rental Deemed disposition at FMV on change in use Elect deemed not to have commenced rental provided no CCA is claimed The property can continue to be designated as a PR for up to 4 years The 4 year limit can be extended without limit if you are being relocated for employment reason to a location where your original residence is at least 40 km further away from your new place of employment
Change in use – Rental to PR In general, deemed disposition at FMV on change of use You can elect out of the deemed disposition as long as no CCA is claimed The election also allows to designate the property as a PR for up to 4 years
How to make the best use of PR gain exemption Children age 19 or over Loan to children to acquire a property Register a mortgage to parent for security Designate the property as PR for 4 years
Overcoming attribution Income attribution on loans or transfer made to children 18 or over can be avoided if one can substantiate the main reason for making the loan is NOT to reduce or avoid tax Example: children use the property income for education and not returning the property income to parents
Other Tax Planning Ideas Splitting pension income- Commencing 2007, it is possible to transfer up to 50% of qualified pension to a lower income spouse RESP – Registered Educational Savings Plans TFSA – $5,000 Tax Free Savings Accounts per year Spousal RRSP
Estate Freeze Objective: To freeze the value the of estate for tax purposes at a particular time Arrangements are made for all future appreciation to accrue to related parties such as a spouse, children or grandchildren
Estate Freeze Example Mr. Chan Chan Inc Net Assets 10M Common shares 2 M R/E 8 M
Estate Freeze Example Mr. Chan Chan son 1 Chan son 2 Chan Inc Preferred ACB 2 M Redeem 10M Common Using Section 86 rollover, Mr. Chan’s old common Shares are exchanged for preferred shares, while Sons subscribed for new nominal common shares
Benefits of Estate Freeze To transfer future growth of a corporation into the hands of intended beneficiaries with no immediate tax effects on the transferor The beneficiaries will be taxed in income earned subsequent to the estate freeze Multiple use of $750,000 of lifetime capital gains deduction for qualified small business corporation
Insurance - Benefits Will bypass probate if a beneficiary is designated Creditor protection- exempt from seizure if the designation is in favour of a life insured’s spouse, child grandchild or parent Tax preferred treatment for Whole or Universal life policies Privacy- insurance does not flow into the estate and the probate registry Insurance declaration- testamentary trust
Insurance Declaration To desire to establish an insurance trust outside the will, the concern was it would be an inter-vivos trust CRA’s position is trusts funded from the proceeds of life insurance on death of an individual will be viewed as a testamentary trust A powerful & inexpensive tool to set up a testamentary trust
Trust- what is a trust? Settlor Trustee Beneficiaries A trust is a relationship that arises when a settlor transfer property to a trustee to hold for the benefit of the beneficiaries.
Trusts Settlor is the person who sets up the trust and make the initial transfer of property to the Trustee Trustee is the person who holds the formal legal title to the property Beneficiaries are persons who will benefit from the property that is held by the Trustee
Income splitting of a trust A high income individual transfer investments property to a family trust The father is the settlors The father & 2 other investment advisors are trustees to avoid reversionary trust. The trustees hold title to the investment property The adult children are the beneficiaries
Income splitting of a trust-Cont Assuming the father is at the top tax bracket, the father can save $5,000 every year on $50,000 eligible dividends if the dividends would be earned by an adult child if the child has no other income The same tax savings can be achieved with or without the family trust, but a discretionary trust can provide the father more control over the capital & the income allocation
End of family trust for minors In 2000, the federal Govt ended the tax benefit of income spitting of private corporations by introducing the “KIDDIE TAX”, taxing the dividends from private corporations to children under age 18 received directly or through a trust at the top tax rate and restricting personal credit
Understanding taxation on death What are the CPP & OAS benefits on death? What are the tax consequences on death?
Termination of CPP on death If the deceased has commenced receiving CPP, CPP benefits to a contributor will cease upon death There are CPP benefits for surviving spouse or common-law partners & children
CPP benefits for survivors CPP provide benefits for the surviving family members of a deceased contributor. Benefits based on contributions made by contributors. Benefits provided in 3 categories 1. Death benefit 2. Survivor’s pension 3. Children’s benefit
You have to apply for get CPP Benefits (not automatic) Retroactive benefits are available for up to 12 months
CPP Death Benefit Is a one-time lump sum payment upon the death of a qualifying contributor to the deceased estate. The max amount is $2,500. Amount included as income of the estate.
Survivor’s Pension Survivor’s pension is a monthly benefit paid to the legal spouse or common-law partner of the deceased contributor Survivor’s benefit depends upon the deceased’s contributions to CPP, age of the surviving spouse, whether the surviving spouse is supporting dependents and whether or not the surviving spouse is receiving any CPP benefits Max CPP for surviving spouse age 65 & over, 60% of the contributors’ CPP
Children’s Benefit A dependent child is a natural or adopted child of the contributor and who is: Under the age of 18 or Is between 18 to 24 and is in school full- time The children’s benefit is a flat amount, $225 per month in 2013
CPP Payment Rates TypeAvg AmountMax Amount Survivors < Age Survivors > Age Combined survivors & retirement 7221,013 Children Death benefit – one-time payment 2,2752,500
Old Age Security (OAS) Federally funded from general revenue A social security program designed for lower & middle income Canadians who have resided in Canada for a minimum of 10 years after age 18
OAS Benefit Payment Rates TypeAverage Monthly Amount Max Monthly benefit Max annual income OAS for single514546See note GIS, age 65 & over -single ,560 Allowance for survivors 6191,16122,320 Note: 15% clawback from $70,000, no OAS if income over $113,000
Taxation on Death No Gift Tax No Inheritance Tax Probate - probate is a court process that proves the validity of a will Income Tax on Deemed Disposition on Death
Probate Tax Probate tax is proportional to the value of the estate, so that lower the value of the estate, the lower the probate tax. Probate planning is aimed at reducing the value of the estate.
Probate Tax in B.C. Assets < $25,000 $25,000 - $50,000 Over $50,000 Filing fees of $208 $0 0.6% 1.4%
No Probate Tax No probate tax on joint assets & designated assets as they pass outside your will and they do not form part of your estate
Probate Planning By having estate assets passing outside wills (wills substitutes) Inter vivos gifts Inter vivos trusts Registering assets in joint tenancy with right of survivorship Beneficiary designations such as RRSP, RRIF and insurance Multiple wills –will discuss in the Will Section
When is probate necessary Intestacy – where the deceased died intestate & there are assets in the estate When an estate is involved in litigation Real estate other than joint tenancy with right of survivorship Bank account over $10,000
Income Tax on Death Final or Terminal personal income tax return from January 1 to the date of death of that year Death causes a deemed disposition at fair market value (FMV) relative to capital property owned by the deceased taxpayer (except for those properties qualifying for spousal rollover)
Income Tax on Death (Cont 2) Deemed disposition at FMV may result in capital gains on capital property or recapture of capital cost allowance (CCA) on depreciable property 50% of the capital gain is taxable
Spousal Rollover Exception to deemed disposition on death at FMV – Spousal Rollover No deemed disposition at FMV when the property is left to a spouse or common-law partner or to a trust for the benefit of the spouse or common-law partner
Tax Consequences of a Spousal Rollover The deceased taxpayer’s capital property is deemed disposed at adjusted cost base (ACB) or undepreciated capital cost (UCC) of depreciable property, resulting in no capital gain or recapture to the deceased’s terminal tax return The receiving spouse assumes the deceased’s old ACB or UCC cost for the property, or simply inheriting the old cost base of the deceased
Electing out of the Spousal rollover If it is beneficial to have deemed disposition at FMV, then make an election to opt out of the rollover Election is to be made in respect of each property A partial rollover is available by electing out of the rollover on some pieces of property and not others
General Treatment of capital gain or capital loss 50% of capital gain is taxable 50% of capital loss is allowable Generally, allowable capital loss can only be applied against taxable capital gain, an cannot be claimed against any other type of income
Treatment of Allowable Capital loss in the year of death Where an allowable capital loss is realized in the year of death or a net capital loss is carried forward into the year of death, the allowable portion is deductible against any income in that year
Death of an RRSP Annuitant Assets of unmatured RRSP pass to someone other than a spouse/common- law partner or a qualified child or grandchild, the FMV of the plan assets must be included in the annuitant’s income in the year of death
Death of an RRSP Annuitant – Refund of Premiums A refund of premiums is used to define assets from an unmatured RRSP on the death of a RRSP annuitant and which are paid to a qualified beneficiary There are 3 categories of qualified beneficiaries
3 Categories of Qualified Beneficiaries 1. The deceased annuitant’s spouse or common-law spouse 2. The deceased annuitant’s financially dependent child or grandchild 3. The deceased annuitant’s financially dependent child or grandchild who is mentally or physically disabled
Taxation of Refund of Premiums Generally refund of premiums are taxable in the hands of the recipients unless the funds are applied to into an RRSP, RRIP or a qualifying annuity by the spouse/ common- law partner or disabled child Financially dependent child has an option to transfer the fund into a term certain to age 18 annuity
RRSP Contributions after Death A taxpayer’s legal representative can make contributions to a spousal RRSP on behalf of a deceased taxpayer in the year of death The contribution can be claimed as a deduction in the deceased tax return
Death of the RRIF Annuitant Tax treatment similar to RRSP A term “Designated Benefit” replaces that of refund of premiums in RRSP
No roll-over of RRSP/RRIF to spousal trust Where the terms of a will specify the transfer to an RRSP/RRIF spousal trust, the FMV value will be added to the deceased income
Tax plan for RRSP/RRIF Generally, designate spouse or disabled children as the beneficiary directly on the RRSP/RRIF contracts Doing so enjoy the spousal roll-over and avoid probate tax
Employee Death Benefit $10,000 exemption on death benefit in recognition of service Amount included in the income of the recipients See if part of an employment income be called death benefit or retiring allowance
Charitable Giving A deceased taxpayer can claim charitable donations up to 100% of the taxpayer’s net income in the year of death Excess can be carried back one year up to 100% of net income
Elective Returns Other than the final return, there is an opportunity to elect 3 additional returns Benefits to opt for filing additional tax returns include lowering the marginal tax rate, full personal exemptions claimed in the elective returns
3 Elective tax Returns Rights or Things – most common Proprietor or Partnership Income A Testamentary Trust
Rights or Things Include items of income which have been earned and are receivable at the time of death Examples of Rights or Things are: Matured but unclipped coupons Dividends declared but unpaid Salaries, commission & vacation pay owing but unpaid
Proprietor or partnership Income (Fiscal year other than calendar year) Business income for the stub period from the end of the fiscal year to the date of death Example: John dies on May 1, business has Jan 31 Y/E. Income for the year ended Jan 31 must be included in the terminal return. Income fro the stub period from Feb 1 to May 1 can be included in a separate return
Testamentary Trust Income (fiscal year other than calendar year) Income for the stub period from the end of the fiscal year to the date of death can be included in a separate return Example: Sam was beneficiary of a Testamentary Trust of May 31. Trust allocated $15,000 interest income on May 31. Trust further allocated $10,000 income on July 1. Sam died Sept 1. $15,000 has to be included in the terminal return and $10,000 in a separate return
Beware of filing final returns There are as many as 4 tax returns and full personal exemptions can be claimed in each return There would be BIG tax savings!
Will Planning - Understanding your Assets Wills are generally thought as means by which individuals dispose their property at death. Now, more frequently, the bulk of one’s estate passes outside his/ her will- Will Substitutes
Will Substitutes Making inter vivos gifts Transferring property into joint ownership with right of survivorship such as joint tenancy or joint bank account Transferring assets to an inter vivos trust Making RRSPs, RRIFs, and life insurance payable to a named beneficiary
Will Substitutes - benefits A reduction of probate fees Protection from wills variation claimants, transfers via will substitutes may be less open to being overturned due to transferor lack of mental capacity or undue influence No delay in the distribution of assets Privacy – probate is a public process, allowing anyone to see who gets what
Income tax consequences of Inter Vivos Transfers Although for Probate purposes, assets disposed prior to death will not be included in the estate and will not be subject to probate tax Generally, except for roll-over to spouse or spousal trust, alter ego trust etc, transfers of properties are deemed to be disposed at FMV, & will be subject to taxation.
Deemed Disposition will not be a problem where The gifted property consists of cash or near-cash assets The gifted property is a capital property but has not yet increased in value The gifted property was the transferor’s principal residence The transfer is to a spouse or common- law partner
Transfer of a Joint Interest A simple way to avoid probate tax is to transfer property into joint tenancy with say a child. On death, the property passes automatically to the transferee without any need for probate For tax purposes, CRA’s position is that the parent has disposed 50% of the parent’s interest in the property at the time of transfer
Document your gifts Inter vivos transfers may be intended gifts or for other reasons such as to avoid probate tax or to allow a child to more easily aid a parent manage the financial affairs as joint bank accounts Family disputes often arise whether the transfer was really intended as gifts or for other reasons Costly litigations among family members when the donor is already dead
Risks of transfer of a joint interest to a spouse If the surviving spouse has the bulk of the assets, the assets ultimately be distributed according to his/her will, children may be cut out, particularly in the 2 nd marriage.
Risks of transfer of joint interest to a child Properties are deemed disposed at FMV, resulting in taxation Property Transfer Tax on real property Child’s consent will be necessary to mortgage or sell Exposure to child’s creditor Loss of tax benefit from testamentary trust
Risks of transfer of a joint interest to a child (Con’t) If the property is a RP, and the child (transferee does not live there, ½ of the PR exemption will be lost for years following the transfer If the property is occupied by the child and his spouse as their matrimonial home, and if the child predeceases the parent, the deceased child’s interest may then pass to his/her spouse
Transferring assets to an inter vivos trust Property that an individual has transferred to a trust during his or her lifetime will not form part of his/her estate at death, and therefore will not be subject to probate tax Is less vulnerable to attack on the grounds of the settlor’s lack of mental capacity Shelter assets from claims of creditors & dependents
Understanding Trusts Settlor is the person who sets up the trust and make the initial transfer of property to the Trustee Trustee is the person who holds the formal legal title to the property Beneficiaries are persons who will benefit from the property that is held by the Trustee
Legal perspective- Trust is not a separate entity Trust is not a separate entity from the legal perspective A trust cannot own property, nor enter into any legal contract Trustee holds the legal title to the property for the benefit of the beneficiaries
Tax perspective of trusts Tax perspective, a trust is deemed to be an individual A trust has to file a separate tax return
Types of trust Testamentary Trust - a trust that arose as a consequence of death of an individual Inter Vivos Trust – a trust that is established by a living individual
Testamentary Vs. Inter Vivos Testamentary Spousal or common-law (rollover of properties to trust at cost) Other beneficiaries (deemed disposition of properties at FMV) Inter Vivos Spousal, common-law, Alter Ego (Age 65 & rollover of properties to trust at cost) Other beneficiaries (deemed disposition of properties at FMV)
Taxation of Inter Vivos Trusts Inter Vivos trusts are subject to the highest top tax rate, 43% in B.C. No progressive tax rates benefit Forego the possibilities of having the testamentary trusts One can mitigate the top rate taxed in a trust by paying out the income from the trust to the beneficiaries.
21 year deemed disposition Without the deemed disposition rule, trusts may allow capital gains to accumulate without tax consequences In order to place limits on the deferral process, a trust is deemed to its capital property disposed at FMV every 21 years
Deemed disposition Spousal & common-law partner trusts – the deemed disposition occurs on the death of the spouse or the partner Alter ego trusts – the death of the settlor Joint partner trusts – at the later of the the death of the settlor or the spouse/partner
Why setting up Inter Vivos trusts if taxed at top tax rate Control! Control! Control! Avoid the possibility of disgruntled dependents litigating under Wills Variation Act (likely in blended families) & leave assets to your desired beneficiaries Protection from creditors Privacy – if assets are bequested in a will, they will be subject to probate which can be made public Minimize the value of the assets in the probate
Use of Inter Vivos Trust (1) H1 & W1 both had a standard mirror will, one is the beneficiary of the other, and if both died, the estate would go to their children. W1 died. H1 inherited the whole estate. H1 remarried W2. W2 has her children. H1 & W2 prepared s standard mirror will. H1 died. W2 inherited everything. Now, guess who would be left out of the inheritance ?
Use of Inter Vivos Trusts (1) Answer If H1 & W1 would have set up an Inter vivos Joint Spousal Trust that upon the death of the last spouse, the assets of the Trust would have gone to their children. Or H1 & W1 would state upon his/her death, the estate would be rolled over to a spousal trust. The surviving spouse is entitled to all income of the trust in his/her life-time, and upon the surviving spouse’s death, the trust assets would go to the children.
Use of Inter Vivos Trust (2) Mr. X dies, and leaves her with an old house that Mr. X sold for $2 M. Mrs. X annual income is in excess fo $40,000 that would disqualify her from GIS & other benefits Mrs. X plans to give away her money to her children so that she would qualify for GIS. But she is concerned that her children may not look after her.
Use of Inter Vivos Trust (2) If Mrs. X sets up a discretionary Inter Vivos trust with her and the children as beneficiaries of the trust Mrs. X and two other people are trustees of the trust The trustees can determine the amount of income distributed to beneficiaries In fact, Mrs. X can control the amount of her income and continue getting her GIS
Principal Residence Exemption to Trusts A residence held in a trust will qualify for the PR exemption of the residence was ordinarily inhabited in the year by a specified beneficiary. The full gain on a PR will qualify for the PR exemption where the trust has more than one beneficiary, but only one of the beneficiaries occupies the residence.
Use of the PR exemption to trusts 1: If a trust is establish to hold a residence exclusively for the benefit of 2 children. Child A lives in the residence while Child B has her own PR. The whole residence would qualify for PR even though Child B does not live in the residence. 2: Separate trusts can be used for each residence 3. A PR is transferred to a trust to protect from creditors
Beware of Property Transfer Tax on transfer of property There are special PPT exemptions for the transfer of a PR among related individuals, such as spouses, children, parents, grandfathers, but not brothers or sisters.
Property Transfer Tax – PR Exemption The transferee (purchaser) and the transferor (vendor) must be lineal related, either direct ascendants or direct descendants The property must have been occupied by either the transferee or transferor as their PR, for a period of at least 6 months prior to the transfer The building accommodate no more than 3 families
Inter-Provincial Tax Planning using Trusts Trusts can be located in a low-tax province (e.g. Alberta) by having individual trustees living in Alberta, bank & investment accounts in Alberta, meetings of trustees in Alberta etc. Alberta individual top tax 10% vs. B.C. rate of 14.7%
Will Assets These are all assets in your wills after will substitutes They are to be distributed according to the will Will assets are the deceased estate assets and may be subject to probate tax
Purposes of a Will How the testator’s assets are to be divided Appointment of an executor Recommendation for the preferred guardian of any minor children Specific powers entrusted to the executor or any trustee
Purposes of a Will (con’t) A will is fundamental to estate planning as it minimizes expense and delay in the transfer of assets upon testator’s death While a will communicates the testator’s intentions, other legislations such as the Family Law Act must be considered as wills can be contested
Multiple Wills You can have more than one will Multiple wills to deal with different property in different jurisdictions so as to expedite the administration of such assets Can reduce probate tax Example; a will in H.K. for H.K. property
Multiple Wills - Example B.C. resident with rental properties in H.K., Vancouver and shares of a private corp. It might be possible to execute multiple wills, 2 in B.C. and one in H.K. In B.C., one would govern assets which probate is necessary, e.g. rental property The other one would govern the non-probate assets such as shares of a private corporation that probate is not necessary One will in H.K.
Taxation of Testamentary trusts Testamentary trusts are taxed using the same progressive rates that apply to individuals, rates range from 21% to 43% in B.C. Personal credits are not available Multiple testamentary trusts would provide multiple applications of the low rates to individuals
Taxation of Testamentary trusts (con’t) Multiple trusts can be created if the will establishes a separate trust for each child ( Mitchell v. MNR 56 DTC 521) and each trust would have its independent investment objectives suitable to the needs of the respective beneficiaries. Each trust should be created with separate terms and condition. To prevent multiple trusts, CRA may designate the multiple trusts as a single trust if income from the trusts will ultimately accrue to the same or group of beneficiaries
Example of a testamentary trusts In Joe Smith, in his will he states a spousal trust be set up and that his entire estate be rolled over to a spousal trust. His spouse is entitled to all income in her life-time, but upon her death, the trust assets would go to his children. This may ensure that if she remarries, the children are surely looked after.
Sample of testamentary spousal trust (Cont) The testamentary spousal trust benefits from progressive tax rates. If the spouse has too high an income that may affect her old age security (OAS), i.e. income in excess of $67,000, the trust can designate amounts to be deemed not paid when they are in fact paid to the beneficiary. The trust will include the amount as trust’s income.
Testamentary trusts (cont) If Joe Smith is wealthy enough, he may consider to set-up multiple trusts, one for each of his children so that there would be multiple use of progressive tax rates & have experienced trustees to look after the trust Assets willed to testamentary trusts will not reduce value of the estate and hence will not reduce probate fees
Incapacitating Issues A will is effective only upon death Individuals does not automatically have the right to handle spouse’s legal & financial affairs in the event that the spouse is not able to because of illness or unavailable Without proper legal documents, the healthy spouse has to apply to the court for permission to act on behalf of the incapacitated spouse
Two types of Power of Attorney Person’s property- Enduring Power of Attorney Person’s health – Power of Attorney for Personal care or a Living Will
Action Plan My experience with my parents estates Power of Attorney / Representation Agreement & will for everyone Trusts are not just for the rich. Trusts can be used for individuals to access GIS & other benefits and PR trusts Rich can consider multiple wills & trusts You will benefit from a good accountant.