Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Listen to Estate Planning for the Newly Separated Spouse

This week on Hull on Estates, Ian and Suzana bring us up to date on what has been happening at Hull and Hull over the summer. Jordan Atin appeared on Canada AM to talk about how to avoid The Family War. They have also added two books to their recommended reading list:

Duct Tape Marketing by John Jantsch

Endless Referrals by Bob Burg

Ian and Suzana then discuss issues to consider in estate planning for the newly separated spouse. They talk about the two different types of claims that can be made: Equalization and Claim for support.

A new Hull and Hull breakfast series will take place on Wednesday, October 8, 2008 and participants are encouraged to attend either via webcast or in person. You can also contact Hull and Hull by leaving a message or question with any of the following:

Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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I recall a good deal of discussion when Leona Helmsley left millions to be held in trust in her Will last year, some of it on the Hull & Hull blogs and podcasts.

Well, the website for Estate Planning for Pets provides some interesting reading in this vein, although the kind of trust established by Ms. Helmsley is obviously rare.  My own eye was drawn to the “for skeptics” section, which admonished professionals to put their clients’ wishes first, not their own priorities.

The point seems to be that rather than focus on one’s own, subjective opinion that money to pets could be used for other purposes, it is more appropriate to consider what happens to the pet if the testator makes no provision.  Absent provision, the pet could end up abused, ignored or euthanized.  Anyone who has lost a beloved pet can probably understand why testators want to soften the blow to a pet who loses them.  

Thanks for reading.

Sean Graham

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Estate planning and litigation professionals are still mulling over how the legalization of same-sex marriage will affect their practices. Even more complex developments may be in the offing. 

An allegedly polygamist community in British Columbia and increased concerns about the possibility of polygamy elsewhere in all but name in other regions of the country raise any number of issues, not only of policy, but also estate planning.

For example, if someone dies leaving multiple spouses but only one legally-married spouse, what advantages would the legally-married spouse have over the others in the division of a contested estate?

How will the fact that bigamy and polygamy remain illegal play out in civil estate disputes?

If proscriptions on polygamy are or become ignored by governments, will the law evolve? And as it did in the case of same-sex marriage, what happens if bigamy or polygamy becomes legal, since families may become large enough that dependant’s support claims could exhaust most estates rendering much estate planning redundant?

Stay tuned and thanks for reading.

Sean Graham

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Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil.

Roddick had been very vocal about her intentions to give her wealth to charities and called the idea of bequeathing her estate to her two daughters obscene. Prior to their mother's death, her two daughters were interviewed and reportedly relieved to not be inheriting their mother's wealth and supportive of their mother's charitable giving.

Needless to say, Roddick's decision to leave nothing to her two daughters sparked some discussion. David Smith's previous blog on wealthy parents and transfer of wealth discusses some of the concerns such individuals have about estate planning.

Thanks for reading,

 

Diane Vieira

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By my count, in the relatively short history of our website, our firm's lawyers have blogged on the transfer of wealth by the boomers to their children on six separate occasions.  See, for example, this blog and this blog.  And our blogs reflect a trend to report on the subject as the dominant sociological issue in the business media.  See, for example, this piece by Jonathan Chevreau of the National Post.

Numerous surveys have been released as to the intentions of boomers with respect to their estate plans.  The fundamental characteristic is a focus (on those in their fifties) on enjoying quality time with their families and ensuring that their estate plan properly provides for their children both before and after they are gone.  Some have suggested that this "family focus" is a departure from previous generations although I think this is open to question. Nonetheless, the statistics are illuminating, particularly respecting inter-vivos gifts to children. 

Take, for instance, the findings of a Royal Bank of Canada Poll released in November, 2007:

1.  Fifty-seven per cent of Canadians in their fifties have received or are expecting to receive money  from their parents and in-laws;

2.   Approximately three in five respondents in their fifties expect to give money, during their lifetime, to their own adult children; of those, sixty-nine per cent say they will do so because they want to see their children enjoy their lives; seven per cent say that they would not, believing that their children need to earn their own way or wait until their parent dies. 

5.   When contemplating their legacy, seven in ten respondents want to be remembered as a person who enjoyed time with their family. This family focus is also reflected in the finding that four in five of those in their fifties believe that "their children are their legacy."

David M. Smith

 

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Checklists are wonderful things when it comes to the practice of law (list makers would argue that that is true in life as well). In today’s busy practice, a checklist can ease the troubled legal mind.

I was looking at several estate planning information checklists earlier this week. It is worthwhile to highlight some issues/items that can be easily overlooked but which a thorough solicitor should ensure is on his/her checklist:

·         If you are acting for both spouses/partners, advise the clients that you cannot act for one at a later date without the other’s knowledge;

·         Is the estate trustee to manage funds for minors and distribute monies to the guardian for care, maintenance and education of minor children. Who is the guardian;

·         If they can be transferred, who gets air mile/loyalty points. What about transferable equity in hunting/fishing lodges or sports clubs;

·         Joint Assets and the presumption of a resulting trust – is there a clear intention of ownership;

·         For foreign property, consider the necessity of executing a separate will or appointment of a local estate trustee;

·         Ensure every life interest is coupled with a remainder interest; and

·         Ensure any charitable organization named as beneficiary is still in existence and properly described.

Have a great weekend and for all those skiers out there, let it snow, let it snow, let it snow.

Justin

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The oft-repeated phrase "unprecedented transfer of wealth" has been invoked by estate planners and financial advisors alike to describe the pending inheritance by the children of baby-boomers.  But what if they don't inherit that wealth?  Several months back, Warren Buffett raised more than a few eyebrows when he very publicly announced a commitment to benefit the Bill & Melinda Gates Foundation, rather than his children, with the bulk of his estate.  And he is not alone.

Enter "The Trust Fund Whisperer" as Dr. Lee Hausner was described in a recent article in The Globe and Mail (October 16, 2007),  Dr Hausner is a psychologist who, as Siri Agrell so succinctly put it in her article, "is paid to tell families how to avoid screwing up their children with their cash." A lot of cash, that is, if the title of her book Children of Paradise: Successful Parenting for Prosperous Families is anything to go by.  Essentially, Hausner challenges what she sees as a culture of entitlement enjoyed by the wealthy elite by arguing in favour of fostering a strong work ethic. Agrell's article provides a well organized summary of Hauser's approach together with some of her key recommendations such as: (i) paying for expenses rather than transferring substantial wealth to a child during their career building years and (ii) when transferring cash, spreading the payments in three installments over a prolonged period rather than in one lump sum.   

Certainly, trust and estate practitioners play a key role in implementing such recommendations.  The increasing popularity of such estate planning techniques as incentive trusts (detailed in a transcribed podcast and an audio podcast on our website) can be seen as a response to the thesis espoused by Hauser and others. 

Thanks for reading,

David

 

 

 

 

 

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Welcome to my week of blogs! As you may have gathered, lawyers at Hull & Hull alternate weeks when it comes to blogging.  The hope is to provide you with a cornucopia of perspectives on various issues of interest to the estate bar and the profession generally. We try to mix light-hearted topics with serious ones. 

Turning to today’s blog, I read with interest that Pavarotti’s Will was recently opened. The great tenor ultimately succumbed to pancreatic cancer. Pavarotti was colourful both on and off the stage. He was married twice and sired 4 children. It now turns out that Pavarotti’s estate is as rich as his voice.

Pavarotti left the bulk of his estate to his second wife and four children pursuant to a recent June 13^th Will (his youngest and only child from his second marriage is four years old). In a second Will dated July 29^th Pavarotti apparently created a trust in favour of his second wife of approximately €15 million.  This was a surprise to his friends and family.  The second Will dealt with Pavarotti’s three New York apartments as well as personal items, including paintings by Matisse.  The family has denied rumours in the Italian press that Pavarotti’s first and second families were at odds. Like so many, Pavarotti waited until the end of his life to deal with his Estate.  No doubt, the opera star was reluctant to confront his own death (though death looms large in many operas).  

The reading of a Will by family members is often fertile ground for surprise and disappointment. Many testators use a Will to settle old scores, reward or punish behaviour, or favour those who nursed the testator through illness or old age. 

I struggle with whether to advise a client to reveal the contents of his/her Will to family members before death. Overcoming the trepidation to execute a Will is one thing, but to then reveal its contents to family members, who may benefit unequally, is an entirely different matter. For example, a disappointed son or daughter may punish their parents by no longer seeing them or cutting off access to grandchildren.  However, if the Will comes as a surprise after the testator’s death and is a disappointment, the potential for litigation is rife.  A disappointed beneficiary will justify litigation by claiming that they are only doing “what mom really wanted”.  Emotions come into play, judgment becomes clouded, and lawyers are retained. 

In the end, there is no easy answer as to whether to advise your client to reveal the contents of his/her Will.

Ciao, Justin

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Listen to "The Family Cottage and Capital Gains Taxes"
Read the transcribed version of "The Family Cottage and Capital Gains Taxes"

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss different options for dealing with capital gains tax as it pertains to investments like 'The family cottage'.

Click "Continue Reading" for the transcribed version of this podcast.

The Family Cottage and Capital Gains Taxes - Hull on Estate and Succession Planning Podcast #74

Posted on August 21^st, 2007 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You are listening to Episode #74 of our podcast on Tuesday, August 21^st, 2007.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada. Here are Ian and Suzana.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you?

Ian Hull: I’m fantastic.

Suzana Popovic-Montag: That’s good.  Are you enjoying the summer?

Ian Hull: Yeah it’s good.  It’s, you know, it’s been a lot of fun and the weather has been good here in Toronto.  And a little hot in downtown Toronto a few days, but managed to get up to a cottage from time to time.

Suzana Popovic-Montag: That’s good.

Ian Hull: Speaking of cottages, let’s continue on with our discussion about cottages.  I know our last podcast, we talked about the cottage experience and really just sort of planning steps. Talked a little bit about what we needed to know about capital gains taxes.  Used that illustration, which is important, where we broke down, if we recall, there was a sale price of $600,000.  We took the adjusted cost base of $80,000.  Got it to the capital gain of $520,000 and then the tax payable on that broken down to about $117,000 to $120,000 in tax. Just to remind us because that was sort of our starting point, as to what do we do about this $120,000 tax payable either on death or before.

And we talked a little bit about the multiple uses that we have in managing this tax and this overbearing amount that has to be funded quickly, either after the transfer or after death. So we used a couple of examples too, about transfers during their lifetime.  And we talked about the gifting approach. And we got through part of the sale idea. But let’s just recap the sale option and maybe work through it a little more carefully.

Suzana Popovic-Montag: It’s a good idea, Ian, because when we were talking, we said that, you know, one of the options available in the circumstances, if the tax liability is going to be too high, is to consider actually selling the property to your family during the lifetime. Because at that point, your going to crystallize the tax liability to you and then deal with setting up any future gains which would then fall to your children or whoever you ultimately leave the cottage to at the end of the day.

Ian Hull: And we crystallized the tax at that point and that really gives you some certainty, both within your own estate planning standpoint and it allows you to not feel the burden of a major tax hit that’ll need to be paid down the road. So one of the things that I’ve experienced is that if you can afford a recreational property, maybe you can afford to give it away earlier or sell it earlier to the next generation. Maybe you can afford to pay the tax early.  And I know that sounds sort of counter intuitive because we live our lives trying to defer tax as long as possible. But in so doing, we also defer the issue.  And it may be that now, while you’re alive, it’s better to deal with it, both from a financial standpoint and from an emotional standpoint and managing the family sort of circumstances. For example, a sale of the property at fair market value to one of your kids might be the answer to bring the whole issue forward.  And it can be a useful tool from an estate planning standpoint. You weigh that against the fact that you’re not doing the classic “defer the tax until you absolutely last moment in time can”. And that’s a balancing I think you’ve got to decide whether it works better or not for your family.

Suzana Popovic-Montag: I think another option to sort of keep in mind too is that if you find that the possibility of having to pay the capital gains tax immediately is gonna pose too much of a cash flow problem to you, then you might consider some, you know, fancy estate planning or inter vivos planning in terms of selling or gifting the property in installments over a period of years, as opposed to just an outright sale at one point in time.

Ian Hull: So how does that work?

Suzana Popovic-Montag: Well, what would happen, Ian, is that a portion of the property would be transferred each year and then the capital gains tax payments would then be spread out effectively over a longer period of time.

Ian Hull: So that’s a more complex way of dealing with the sale, but maybe manageable, more manageable financially.

Suzana Popovic-Montag: And you could alternatively maybe consider selling the property and then taking a mortgage back from your family as consideration if, you know, there’s a fear that they wouldn’t necessarily have enough money to fund the purchase. Then you could set up an arrangement where you’re taking a mortgage back with or even without interest.  

Ian Hull: Okay, so…but what happens if you take the mortgage back and you sell it to your son and you take a mortgage back and there is no interest.  Does that create problems though?

Suzana Popovic-Montag: It could because you could be, you know, viewed by CRA, the tax authority, as doing a preferential share which might have some negative consequences to the family members.

Ian Hull: Right, because if the mortgage, if it bears interest, you have to declare the interest on your tax return even if the interest isn’t paid. So I know CRA will typically just attribute a value, the typical going rate for a mortgage would be “X” dollars and they’ll just attribute that as income to you.

Suzana Popovic-Montag: That’s right.  It’s going to be accrued as opposed to a cash paid basis. 

Ian Hull: Alright, what about another option entirely outside of this.  And maybe a bit outside of the box of what we’ve been talking about, but a living or an inter vivos trust?

Suzana Popovic-Montag: Well, Ian, if you want to transfer future gains in the hands of your children now, but you’re not really ready to give up the control of the property, then one of those options is, as you say, this living or inter vivos trust arrangement.

Ian Hull: So much like a gift of property though, the transfer itself into the inter vivos trust, into the living trust, will trigger an immediate taxable capital gains liability.

Suzana Popovic-Montag: But you can have the structure of the trust set up so that you can maintain control of the property during your lifetime and then have the control pass to your children on your death.

Ian Hull: So again, with no immediate tax liability to them in terms of probate capital gains or Land Transfer taxes, but you can manage the control issue and the tax issues in this living trust arrangement.

Suzana Popovic-Montag:   That’s right.  And that’s one of the benefits of that is, is as you say, the control. Like, you’re dealing with the property, you’re effectively, you know, crystallizing the tax liability, paying it, but you’re not losing necessarily the control over the property.  You can still go to it when you choose to, that kind of idea.

Ian Hull: So another sort of twist on this living trust idea is that the terms of the trust itself could provide a fund for maintenance and repairs to the property.

Suzana Popovic-Montag: And if you do think about setting up this kind of fund, you want to include in that terms that are going to allow the fund to actually grow over time. So that you do in fact provide a sufficient maintenance fund in the future.

Ian Hull: So it’s sort of like a living trust within a living trust.  We’ve got, maybe you put the property into one trust and then you throw some cash into another trust so that it can generate enough money to pay the expenses over time, and that way perpetuate the ownership of the trust into the next generations without being a tremendous financial burden on the next generations.

Suzana Popovic-Montag: That’s right, Ian.  That’s certainly the idea and, you know, we’ve seen many of those kinds of arrangements put into place quite effectively.

Ian Hull: So, again without being too overly tax technical about this, what’s one of the disadvantages of the living trust from a tax standpoint?

Suzana Popovic-Montag: Well from that perspective, one of the problems with the living trust is that all the income and the taxable capital gains are going to be taxed out.   What they call that top marginal rate.  And so the capital gain that, you know, likely wouldn’t be realized until the property is actually sold, but any income that’s going to be generated from investing that maintenance fund is going to be taxed still at that highest rate.

Ian Hull: You know and another issue I was thinking too with trusts is that all the property in the trust is deemed to be sold every twenty-one years for capital gains’ purposes. So that, in and of itself, creates us a new layer of bureaucracy in terms of the management of the trust itself. You’re always going to be triggering this capital gains every twenty-one years, so you’re not going to be able to avoid forever the capital gains within the trust.

Suzana Popovic-Montag: It is generally, though, possible to roll out the property to the trust beneficiaries at the cost base and then avoid any kind of deemed disposition. But that effectively means that the trust then has to be wound up.

Ian Hull: If you’re sixty-five years or older, you also could consider getting into the whole sort of realm of setting up an alter ego trust or a joint partner trust or some of the new sort of trust arrangements and transferring of property arrangements that exist in the estate planning world.

Suzana Popovic-Montag: And what would the advantage of that kind of arrangement be, Ian?

Ian Hull: Well if you are over sixty-five and you meet a certain criteria that the CRA will insist on, this will avoid the capital gains being triggered at the time of the transfer. So you are essentially rolling it into a trust that doesn’t trigger the capital gains, but your heirs, your ultimate beneficiaries, will have to pay the tax on your death.

Suzana Popovic-Montag: So it’s really a deferral it seems, then.

Ian Hull: Yeah.

Suzana Popovic-Montag: And I guess, you know, in those circumstances, you’d be looking to a lawyer to help you deal with these complicated rules that surround these different kinds of trust arrangements and agreements. So that you can come up with some kind of structure that works really to your best advantage, whether that is, you know, crystallizing and paying the capital gains tax now or deferring it to a later point in time or deferring it even to the time of your death.

Ian Hull: Well I agree and, you know, sort of as we wind up today’s podcast, I just…we kind of harkened back to what we sort of see time and time again in estate planning and that is this struggle between dealing with the payment of tax versus dealing with the right, and I say right, the proper maybe, estate planning for the benefit for your family. And the tax benefits don’t always equal the estate planning benefits. The family benefits, the idea that, you know, you want to keep harmony and you want to keep balance within the family.  And if you are governed, and this is sort of we’ve gone through these examples so far just in this example, if you’re governed by tax avoidance or tax deferral in your estate plan, it can be treacherous because there are so many other factors to consider. And if you have the financial resources for the recreational property, it may be that you should step away from the tax liabilities and exposure and start thinking about dealing with these properties, with your family in mind, not the tax person in mind.

Suzana Popovic-Montag: That’s some pretty sound advice, Ian.

Ian Hull: Alright, well listen, thanks very much Suzana and we will go back out into the world of lovely summer here in downtown Toronto.

Suzana Popovic-Montag: Thanks to you Ian.  I look forward to our next podcast.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

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With the long weekend nearly upon us, what better time to discuss the family cottage?

If you transfer your cottage to your children while you are living, you will be deemed to have disposed of it at its fair market value and be liable for the resulting capital gains tax which, depending on how long you have owned the cottage and how much it has appreciated, might be astronomical.

One way of reducing tax liability is to take advantage of the principle residence exemption. In doing so, the size of the capital gain will be calculated using a formula involving the number of years you have owned the cottage and the number of years it has been designated as the principal residence.

Keep in mind, however, that after 1982, spouses could no longer designate different properties as their principal residences and, as a result, consideration should be given to the increase of value in your city residence – if the capital gain on it is greater than on your cottage, designating your cottage as your principal residence may end up increasing, not decreasing your tax liability.

Another option, of course, is to simply allow your children to inherit the property after both you and your spouse have died. At that time, there will hopefully be sufficient assets in the estate to pay the capital gains taxes which arise.

In any event, if you have a cottage which has increased substantially in value, it might be worth your while to discuss ways to reduce tax liability with an expert in estate planning.

Have a great long weekend!
Megan Connolly

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It's tax season. That wonderful time of year for number crunching, hunting for receipts and depending on your situation, hair pulling.

If you are an executor of the estate of a deceased person, you also have the responsibility of filing the deceased's "final return." To borrow from a popular expression, the two certainties, death and taxes, follow each other. Final tax returns for those who die during the period from January 1 to October 31 are due April 30 of the following year.*

While there are no inheritance taxes in Canada there are a number of taxes that arise as a result of your death and must be included in the final return. Some of those taxes include the following:

Capital Gains Tax. For the purpose of calculating tax, the CRA deems a deceased to have disposed of all her capital property immediately before her death. This is referred to as a ``deemed disposition.`` Depending on the deemed proceeds of disposition, there may be a capital gain or loss. Certain types of capital property are exempt from this rule and an expert should be consulted for specific advice.

RRSPs and RRIFs. These tax sheltered investment vehicles lose their status as such at death. When you die, the tax holiday ends and your RRSPs and RRIFs are collapsed. There is a deemed sale of any securities held in the RRSP or RRIF and any income made in the year preceding your death must be included in the final return. There are a few notable exceptions to this rule, such as a spousal rollover and transfers of your plan to minor and/or mentally infirm children.

There are many creative ways of reducing the taxes that surface after your death. The benefits of doing so may be substantial and result in considerable savings for your estate. When you consider the fact that you spend a lifetime building your assets, speaking to a profession about your estate is advisable. Your beneficiaries will thank you.

Jason Allan

*For more information on how to file a final return, visit the Canada Revenue Agency's website 

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Listen to "Estate Planning Issues for Separated Couples"

Read the transcribed version of "Estate Planning Issues for Separated Couples"

During Hull on Estate and Succession Planning Podcast #56, Ian and Suzana discuss the circumstances surrounding separated couples, remarriage and common law separations.

They discuss the impact that these separations have on estate planning including financial, tax and property ownership considerations.

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LISTEN HERE

READ THE TRANSCRIBED PODCAST

During Hull on Estate and Succession Planning Episode #45, Ian and Suzana discuss various considerations that must be taken into account before the drafting of an Estate plan and Will takes place.

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During Episode #43, Ian and Suzana discussed estate planning with a focus on financial topics such as tax planning, multiple will scenarios and family law issues.

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Joint accounts tend to be a common estate planning technique used by and recommended to clients by many allied professionals. Recently, in dealing with a litigious joint accounts matter, Ian and I considered some of the legal issues surrounding the creation of such accounts. We came up with a preliminary list of twelve things that we think should be kept in mind in establishing joint accounts.

Firstly, a joint account can be viewed as a gift as between the parties and this is a legal determination that needs to be made. The onus with respect to proving a gift is on the recipient of the gift after death to show that it was legitimate. There is a presumption at law that the gift is not valid and this must be overcome after death.

Secondly, the onus with regard to gifting needs to be considered in the context of a joint account as a gift given during one’s lifetime needs to be proven by the recipient of the gift and a gift after lifetime, given through a testamentary gifting process such as a Will, needs to be proven by the person that received the gift. There is no presumption that it was obtained by virtue of undue influence.

Thirdly, the presumption of undue influence is a legal concept that applies to joint accounts in particular, as it is presumed that when someone receives a joint account, at law, it can strongly be argued that the recipient of the gift must overcome any factual hurdles that indicate that the gift was received as a result of undue influence as between the two joint account holders.

Fourthly, and lastly for today, there is a presumption of resulting trust and the case law generally states that where someone holds a joint account, at law, the person who put the money into the account is the legal and beneficial owner of all of the money. Again, this presumption of law can be overcome by virtue of the facts and circumstances of the matter, and it may be that it was decided at the time of the account being established that it was to be split jointly.

We’ll discuss the next four legal issues to consider in creating joint accounts tomorrow.

All the best, Suzana and Ian.