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ESTATE TAXATION

As the saying goes, the two certainties in life are death and taxation. These two events come together after an individual dies, bringing what can be numerous duties to an executor. In addition to being responsible for administering the deceased’s estate, according to the terms of the will, the executor may have to probate the will and is responsible for filing the required income tax returns.


Probate Fees

Probate fees vary by province, and are payable in order to have a court of law authenticate a will. In British Columbia for example, fees are six dollars per thousand from $25,000 to 50,000, and $14 per thousand over $50,000. Probating a will can be avoided by structuring one’s affairs in such a way as to bypass the probate process. For example, assets that are held jointly, as tenants in common, automatically become the property of the joint holder, and do not have to go through probate. Be cautious about doing this however, as any assets held jointly such as funds in a bank account can be withdrawn by any of the joint holders.

Additionally, transferring assets to joint tenancy during a persons’ lifetime, such as a principal residence, can result in unanticipated tax consequences. The Canada Revenue Agency can require a joint owner who does not reside in the principal residence to pay tax on any capital gains realized upon sale of the residence. However with proper planning this situation can usually be avoided. Assets transferred by gift before death also do not have to go through the probate process. As you can see proper planning can be worth it.


Income Tax Returns Required

Deceased persons are required to file a final tax return in Canada, reporting all income and accrued gains to the date of death (unless no tax is payable). There can be options in how income is reported. Multiple returns can be filed in certain circumstances, resulting in multiple personal exemptions being claimed, thereby reducing tax payable. In addition, there are a number of other rules that can be used to the estate’s advantage on the final returns. One example of this is that all unused capital losses previously unclaimed can, in certain circumstances, be used to offset other income on the final returns.

A separate trust and estate taxation return is required where an on-going estate is created upon death, such as occurs until an estate is probated. Additionally, the will may require to set aside and administer certain assets for others (such as minors), which creates the requirement to file annual tax returns. Again, proper planning and advice can help to minimize the taxation and ease the administration.


Clearance Certificates

A clearance certificate can be obtained from the Canada Revenue Agency to confirm that all taxes have been paid to their satisfaction. This means an executor can disperse all trust / estate assets and be assured he will not be held personally liable. Clearance certificates can be applied for once all required tax returns have been assessed.

Van Wensem & Vukets have the expertise to guide you through the estate planning process and to help the executor with filing the necessary returns and advising in the many decisions to be made.

Disclaimer:

The information contained on these pages is for general use only. As it is not possible to include all situations and circumstances in a short information piece, all situations should be reviewed with a qualified professional. While all reasonable efforts have been made to ensure the information provided is accurate, no individual or organization involved in preparation or distribution of this material accepts any responsibility or liability for its content. If you have any questions, please give us a call.

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