Irene Wong & Mike Mulligan

Canada is generally viewed as a country with no estate tax. While that's true, what many people don't realize is that a "deemed disposition tax," which is similar to an estate tax, applies when you die. In this article, we'll provide tips on minimizing your estate’s exposure to this tax as well as structuring your estate plan to ensure your beneficiaries get the assets you intend for them.

Taxation Issues

Deemed disposition tax is so-named because your investments are deemed to be sold at death. Any capital gains triggered by their sale are included in a final income tax return filed in the year of death. A final tax return also includes the value of any retirement accounts and income received from stocks, bonds, real estate investments and even life insurance proceeds in the year of death, from January 1 up to the date of death. With Canadian federal income tax rates of up to 29%, this final taxation can be substantial. Provincial taxes and probate fees also apply.

The good news is the tax is deferred if the assets are transferred to a surviving spouse. Taxes are deferred even if the assets are held in a spousal trust, which provides income to the surviving spouse. However, if the spouse sells the assets, then the tax applies. When the spouse dies and the assets are passed on to other heirs, 50% of the capital gains of any stocks, bonds, real estate investments and other assets are taxable at the personal income tax rate.

Why It's Important To Make A Will

"Nothing is certain but death and taxes," American inventor Ben Franklin is attributed to saying. While you can't control either of these two inevitable events, you can make a will to ensure your financial affairs are managed according to your wishes once you're no longer able to, due to incapacity or death.

Without a valid will, you are considered to have died intestate. When that happens, in Canada the province decides how your assets are distributed, without regard to your wishes. Following the laws of intestacy, the province typically distributes the first $50,000 of value to a surviving spouse, then divvies up the rest between the spouse and children. If you don’t have a surviving spouse or children, your parents are next in line to receive your assets, followed by any brothers and sisters.

Dying without a will also leads to delays and extra expenses. The court appoints a bonded administrator to serve as an executor of the estate. In addition, any assets distributed to children under 19 must be passed along to a bonded guardian or to the Public Trustee. The process of appointing these administrators is both expensive and time-consuming.

Three Types Of Wills

To ensure your affairs are handled the way you want them to be, you need a will. There are three main types of wills in Canada:

1. Last will and testament

2. General durable power of attorney

3. Living will (also called an advance healthcare directive)

Let’s take a closer look at each one.

Last Will

The purpose of a last will is to give instructions to a person you choose as an executor on how you want your assets distributed after your death. It typically doesn't give directions on your funeral or burial, since it won't be opened until after the funeral, when the heirs come together for the reading of the will.

Power Of Attorney

The power of attorney gives the person of your choice the power to manage your financial affairs if you become incapable of managing them yourself. It gives this person, designated as your agent or attorney-in-fact, the power to handle such day-to-day tasks as:

* paying bills

* filing tax returns

* opening mail

* banking

* talking with accountants and lawyers

* looking after pets

* voting on your behalf

Without a power of attorney, a spouse has no legal authority to do any of these tasks on your behalf if you become disabled.

Living Will

A living will gives healthcare/mental power of attorney to a person of your choice. It gives this person, acting as your agent or attorney-in-fact, the power to implement the medical treatment you wish to receive if you become unable to communicate your wishes. The document tells doctors, family members and the courts your wishes for life-support and medical procedures, if you were to become brain dead, unconscious, terminally ill, or otherwise unable to communicate your wishes.

A living will essentially gives your chosen agent the power to choose whether or not to "pull the plug" or to decide your fate for you, but its value is debatable. Euthanasia isn't legal under section 215 of Canada's Criminal Code, and the living will has no legal status. However, Canada's Charter of Rights throws the constitutionality of this section of the Criminal Code into question by giving everyone the right to "security of the person and the right not to be deprived thereof."

Trusts Simplify Your Estate Planning

A will ensures your heirs get exactly what you want them to, but a trust can simplify the process of transferring these assets to your heirs. The main difference between the two is that a trust lets you transfer assets to beneficiaries while you’re still alive, and a will transfers your assets when you die.

A trust is a legal entity that owns some or all of your assets, such as bank accounts, real estate, stocks and bonds, mutual fund units and private businesses. The terms of a trust are more legally binding than those of an ordinary will, which can be challenged in a court of law as to whether it fulfills the deceased's "moral obligation." A trust also allows you to avoid the probate process, where the contents of your will are made publicly available.

Types Of Trusts

The main type of trust in estate planning is a revocable living trust, so-called because you can change or revoke the terms of the trust at any time while you're alive. The trust instructs the trustees how to distribute your assets to beneficiaries while you're alive, after death or if you become incapable.

Both you and your spouse can be trustees and manage the trust's assets. This feature of a living trust may be important, for example, if a family business is placed in a trust and you want to continue to have some control over its operations. When one spouse dies, the surviving spouse continues as trustee, but the trust becomes irrevocable in that only limited changes can be made to the terms of the trust.

Since the income is taxable at Canadian trust tax rates, living trusts are not as popular in Canada as they are in the U.S., where the income is taxed at your personal income tax rate. A living trust established after June 17, 1971, is subject to tax on all income at the highest marginal rate of tax in the province of residence. In most Canadian provinces, this rate can range from 39-47% on the first dollar of income. In contrast, a testamentary trust, which operates only after death, is taxed at the personal provincial tax rate.

In addition, assets that are transferred into or out of a Canadian trust are generally treated as if they have been sold and taxed on any increase in value (appreciation) from the purchase date. However, two relatively recent trust structures, the alter-ego trust and joint-spousal trust, allow you to avoid capital gains taxation.

Conclusion

In sum, to ensure your assets are distributed the way you want them to be, you will need a last will, and you also may want to consider a living will as well as a power of attorney, together with a trust.