top of page

Avoiding costly pitfalls

Inadequate estate planning and poorly written will may leave your heirs with a hefty tax bill. The financial pitfalls you should avoid when it comes to estate planning.

by Advisor & Co.
November 25th, 2016

 

Online only.

“I hereby bequeath all my worldly goods to my beloved wife, Jewel.”

This classic formula of last wishes may sound like a declaration of love, but it happens to be a great way to avoid or at least delay taxes. Bequeathing your worldly belongings to a surviving spouse is the best way to spare your estate from carrying a tax hit.

The only certainties in life are death and taxes and when it comes to wills and estates planning, the two go hand in hand. In Canada, there is no estate tax as there is in the United States—where the IRS soaks up as much as 40% of the value of the estate. In Canada, the property of the deceased is taxed in two or three ways. All Canadian provinces, except Quebec, charge an “administration fee” (dubbed “death tax”, but also formerly known as “probate fee”) of around 1% of the total value of the estate (depending on the province). The executor must produce the deceased individual’s final personal return of income up to the day of death, and then pay taxes again on the income generated by the succession (including interest, investment earnings, rent, etc.) from the moment of death to the time the assets are redistributed.

​​​

In Canada, everything that a deceased person owned is deemed to have been “sold” at its market value at the time of death, and taxed accordingly. This is true of a company, a cottage, a woodlot, or any possession that might have increased in value over time, such as a piece of art or jewelry, or a coin or stamp collection. Depending on the province, the executor will generally be obligated to pay a tax of roughly 50% on half of the capital gain since the purchase of these assets. Savings plans taken out to reduce taxes while you’re alive, like RRSPs or RRIFs, are considered withdrawn at the time of death. Their value is then added to the income of the deceased and taxed as part of his or her final personal return of income.

A certain number of assets may be tax exempt, like the deceased’s principal residence, and those that depreciate in value over time, including cars, furniture, electric or electronic appliances, as well as cash and life insurance policies.

The estate will pay tax on all of those amounts included in the final return of income. There is one big exception: Bequests to spouses. Those assets left to a spouse are considered transferred, not sold. But the exemption is strictly for spouses, including common-law and same-sex partners: It doesn’t apply if you are separated, divorced, widowed or single. “It essentially amounts to a tax deferral,” says Paul Coleman, partner at Grant Thornton LLP and national leader of the firm’s succession and estate planning practice. “The day of reckoning comes on the death of the surviving spouse.”

Luckily, there are other measures available to reduce or to fund estate taxes, which should be familiar to all financial planners, lawyers and accountants.

The most commonly recommended funding mechanism is acquiring a life insurance policy for payment at the time of death to cover the taxes owed by the estate. This is particularly useful in cases where inheritors come into possession of valuable illiquid assets like houses, income-earning real estate or, say, a Picasso painting. Without an insurance policy, the executor often has to sell part of the assets to cover the estate’s taxes.

Another tip is to carefully choose which house to declare as a principal residence, since this is one of a very few assets that can be exempt from the tax on capital gain. If your chalet in Muskoka or the Rockies has gained more value than your full time home, it’s probably worthwhile declaring the vacation property as your principal residence. “This works for a house in another country as well. And it doesn’t need to be the place where you actually spend the most time,” says Paul Coleman.

A bequest in the form of a gift to a charitable organization, called “planned giving” in the jargon, also reduces the tax amount owed by the deceased by generating a tax credit of at least 40%, depending on the province. “And if you make a gift in kind to a charity—by donating a house, real estate or shares, for example—the asset will not be taxed at all as part of the succession,” says Ruth MacKenzie, president and CEO of the Canadian Association of Gift Planners.

However, all these financial strategies are conditional on one thing: The existence of a written will. A written testament provides direction to your executor to use any of the measures available to reduce taxes on the estate. “Your executor doesn’t have the power to make a donation on your behalf,” explains Alain Lévesque, President of DeVimy & Associates, a financial planning firm that specializes in planned giving.

And even the most brilliant tax-reducing strategies won’t help your inheritors if you leave behind a large debt, or income you failed to declare. The CRA will not grant a clearance certificate to your estate’s executors (to certify that all amounts for which the deceased is liable to the Canada Revenue Agency have been paid) until all arrears, interest and late penalties have been paid. Even after the executor ties up all the loose ends with the CRA, other creditors need to be paid before the estate assets can be distributed to the heirs.

Because death doesn’t erase any debts owed by the deceased, anyone named in a will or designated as an heir in the absence of a will, must be cautious. Specifically, before accepting a succession, they should wait until the executor has made a careful inventory of the estate’s assets and all potential creditors have been located. The potential inheritors should be particularly wary of committing acts that amount to an acceptance of the succession. These can include things as simple as using the deceased’s accounts to pay for the funeral, or using his property as their own. Even driving the deceased’s car could be construed as acceptance of the inheritance transfer unless it’s clearly done for the benefit of the transfer.

It’s also important to make sure your will is up to date. It’s common to see wills that designate divorced, or deceased spouses as heirs, or that leave a cottage that was sold ages ago to a loved one. “A will should never be regarded as a static document. It must be reviewed regularly,” says Paul Coleman, who points out that one common mistake people make is to assume that the tax shelters that existed 20 years ago still apply today.

The testamentary trust is a case in point. This legal instrument is used to place part or all of the deceased’s assets under the responsibility of a trustee, who then manages it according to the dictates spelled out by the deceased—for example, to cover the costs of a child’s education or care for a spouse. Until recently, testamentary trusts benefited from a very advantageous tax rate, namely the graduated rates of taxation applicable to individuals. But in 2016 the law changed. Aside from a few exceptions, they are now taxed at the highest marginal federal rate, exceeding 50%.

Another classic error to avoid when writing a will is choosing the wrong executor. As the central player in the estate administration, the executor has to pay the debts of the deceased and administer their assets until such a time as these are distributed to inheritors. It’s a big job and a good executor needs to be rigorous and competent, while something of a psychologist. For tax purposes, she or he should also be a Canadian resident.

Another common oversight happens when a person names as executor a relative or old friend who then leaves the country. If the executor is not regarded as a resident of Canada for tax reasons, the estate might be taxed according to the rules of the country of residence where he or she is living. Such a situation could potentially wipe out the value of the estate, even for a surviving spouse.

So a good will is one that includes a residency condition for the executor and names a least one substitute. Otherwise, your Jewel may end up paying dearly for your declaration of love.

bottom of page