Skip to content

Client Update: Taxation of Trusts, Estates and Charitable Donation Rules Changing January 1, 2016

The taxation of estates, testamentary trusts and certain “life interest trusts” such as alter ego, joint partner and spousal trusts, and the rules for charitable donations made on death through an estate are changing significantly on January 1, 2016. These initiatives flow from previously announced budgets, and will cause changes to previously established estate plans, wills and trusts.
This client update is an attempt to summarize the more significant aspects of the rules. However, there is a great degree of complexity caused by these changes, and it is important for individuals to seek advice specific to their circumstances. The primary aspects of these changes are set out below:

  • Testamentary trusts (trusts that are established in a will and arise as a consequence of death of an individual) will now be taxed at the high marginal tax rates for income retained in the trust (currently testamentary trusts are taxed at the graduated tax rates) – this significantly curtails the opportunities to use testamentary trusts for pure tax planning (although many non-tax estate planning reasons for such trusts remain).
  • One exception to this is the “graduated rate estate” (“GRE”) which will continue to obtain the benefit of graduated rates for 36 months after the date of death.
  • Testamentary trusts established for the benefit of a disabled individual (a qualified disability trust) will also continue to obtain graduated rate taxation.
  • Existing testamentary trusts will have a deemed year end on December 31, 2015, and all testamentary trusts (except GREs) will have to have a calendar year end going forward.
  • Only GREs are eligible for certain tax planning provisions related to loss carry backs (which are particularly relevant with private company shares) or utilize the new estate donation rules (including the continued elimination of taxable capital gains on donations of marketable securities to public charities).
  • Life interest trusts will now have a deemed year end at the end of the day of death of the life beneficiary and all income (including realized capital gains on that deemed disposition) will be deemed payable to the life interest beneficiary and taxable by his or her estate – this shifts the tax burden from the life interest trust to the estate of the life interest beneficiary which is a significant change, and particularly problematic for second relationship, blended family and family-controlled business situations.
  • Strategies do exist to avoid this mismatch, but revisions to existing trusts are required for those to be implemented.
  • A court ordered variation of irrevocable trusts might be required.
  • The new estate donation rules give greater flexibility for those persons who wish to make charitable donations on death – as long as the donation is made by a GRE within 36 months of the date of death, the charitable tax receipt can be carried back to reduce 100% of taxes in the year of death and the year immediately preceding, or 75% of the taxes in the three years of the estate itself or a five year carry forward in the estate, but the donor must be a GRE.
  • The new donation rules do not apply to gifts by life interest trusts, so the possibility of charitable giving through life interest trusts has been fully eliminated.
  • For more specific information about the new charitable donation rules, please see our separate update “New Tax Rules For Charitable Gifts”.
  • These rules are extremely significant and affect a great many different estate planning scenarios. We would encourage everyone to review their wills, testamentary trusts and life interest trusts with their professional advisors to determine what changes may need to be made at this time to address these new rules.

SHARE

Archive

Search Archive


 
 

Canada’s National Day for Truth and Reconciliation – who gets the holiday?

September 27, 2021

Harold Smith, QC and Chelsea Drodge Background On September 29, 2020, the government introduced Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day…

Read More

Time off to vote in the 2021 federal election

September 15, 2021

Richard Jordan The federal election will be held on Monday, September 20, 2021. Under s. 132 of the Canada Elections Act (“Act”), every employee who is an elector (i.e. a Canadian citizen and 18 years…

Read More

Nova Scotia to recognize September 30 as Truth and Reconciliation Day

September 9, 2021

*Last updated: September 9, 2021 (originally published September 3, 2021) Katharine Mack The Nova Scotia government announced earlier today, September 3, that it would annually recognize September 30 as Truth and Reconciliation Day, beginning in…

Read More

Labour and Employment webinar – Mandatory vaccinations: Calling the shots

September 3, 2021

Employers are navigating uncharted territory when it comes to COVID-19 vaccines, from employee health and safety, to workplace policies, privacy and human rights concerns, a panel of Firm lawyers sit down and explore the complicated…

Read More

Final report of advisory committee on open banking

August 26, 2021

Kevin Landry and Annelise Harnanan (summer student) Recently, the Advisory Committee on Open Banking released the Final Report of the Advisory Committee on Open Banking, (“Report”) confirming its intention to implement a broader, more modernized…

Read More

Termination for just cause: do employers need to investigate? McCallum v Saputo, 2021 MBCA 62

August 25, 2021

Kathleen Nash In a recent decision, McCallum v Saputo,¹ the Manitoba Court of Appeal confirmed that an employer does not have a “free-standing, actionable duty” to investigate an employee’s conduct prior to dismissal.² The Court of Appeal held…

Read More

Canadian border re-opening: phased approach for fully vaccinated travellers

August 25, 2021

Brendan Sheridan The Government of Canada is undertaking a phased approach to re-opening the international border. While the government has had limited exemptions to the travel prohibitions throughout the pandemic, the loosening of the restrictions…

Read More

IIROC and MFDA merging into one singular self-regulated organization

August 13, 2021

Kevin Landry On August 3, 2021 the Canadian Securities Administrators (“CSA”) announced plans to combine the Investment Industry Regulation Organization of Canada (“IIROC”) with the Mutual Fund Dealers Association of Canada (“MFDA”). This move will…

Read More

Right time to strike – Courts less reticent to strike pleadings in Newfoundland and Labrador

August 12, 2021

John Samms, with the assistance of Olivia Bungay (summer student) In a recent decision, S.D. v Eastern Regional Integrated Health Authority, 2021 NLSC 100, the Supreme Court of Newfoundland and Labrador denied the Plaintiff’s application…

Read More

What employers and employees need to know about election day in Nova Scotia

August 12, 2021

Richard Jordan and Folu Adesanya The 2021 Nova Scotia general election will be held on August 17, 2021. With the election looming, many Nova Scotians will be wondering the same question: “Am I entitled to…

Read More

Search Archive


Scroll To Top