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When it comes to family, one thing is for certain: every family is different. Whether in structure, circumstances, dynamics or goals, each family has unique defining features that drive both how they function and the decisions they make. In estate planning and wealth transfer, these unique and individual aspects often play a large role in how, when and why assets are transferred in a specific way and certain plans are put into place.

Looking specifically at family statistics within Canada clearly illustrates the diversity that exists, even at the structural level. According to recent Census data, 67 percent of couple families are married, 16.7 percent are common-law, and 16.3 percent are lone-parent.5 Digging deeper into these statistics, of all couple families with children, 84.7 percent are intact and 12.6 percent are step- or blended families.6 Again taking this one step further, these blended families may include children from previous relationships, the current relationship or a mixture of both. And, with divorce rates hovering in and around 40 percent mark in Canada,7 stepfamilies and blended families are on the rise, further emphasizing the growing diversity within family structures across our nation. If you layer on top of that the other circumstantial and dynamic challenges that families often face, it’s clear why the topic of wealth transfer may quickly become complicated for many.

With these elements in mind, the question becomes how  to effectively plan in a way that best aligns unique family dynamics and goals when also dealing with a wide range of, and possibly conflicting, needs. What it comes down to is recognizing that much like family aspects and defining features range from very complex to fairly simple or traditional, so too do the options and approaches available.

Understanding the range of approaches

Specifically in regards to transferring wealth, there are a wide variety of options to consider. Some of the more complex ones include inter vivos and testamentary trusts; on the simpler side are outright gifts and inheritances, joint tenancy with right of survivorship and beneficiary designations. The choice in preference among some is tied to a strong sense of hope or intent to positively impact and assist the next generation, but unfortunately, the right plans often aren’t in place to ensure that happens smoothly and in a way that supports family harmony. When this type of disconnect exists between hopes and execution, it leaves the door wide open for conflicts to arise that may negatively impact family dynamics and relationships. As such, it’s crucial to connect the dots, so to speak, in identifying specific goals and circumstances and then working with qualified estate planning professionals to find the best methods to achieve individual and family objectives.

Trusts

In general, trusts are considered an effective method for distributing assets in a way that helps solidify a particular outcome, while at the same time creating  the ability to tailor to individual preferences. The creation of a trust occurs through an individual transferring  assets (which may include investments, principal residences, vacation properties, shares of private companies, and even family valuables) to a trustee, who then becomes responsible for administering those assets on behalf of the beneficiaries. What the trust does is sets out a relationship between the trustee and the beneficiaries where the trustee has legal title to the particular asset and the beneficiaries gain the use of it according to trust agreement guidelines. In general, there are two main types of trusts: inter vivos and testamentary.

Inter vivos trusts

An inter vivos trust (also known as a living trust) is one that is established during an individual’s lifetime. This type of living trust can be structured such that it provides the person gifting the assets with significant control and flexibility over the timing and amount of assets distributed to the trust’s named beneficiaries (the heirs). It’s important to note that the assets aren’t controlled directly, but rather named trustees must administer the trust assets in accordance with the trust agreement. Although normally income retained in a properly structured living trust is taxed at the top marginal rate, if the trust agreement allows it, it may be possible to make the income paid or payable to the named beneficiaries and tax the income in their hands at graduated tax rates.

Inter vivos trusts

Potential advantagesPotential disadvantages
  • The terms of the trust may allow for distributions to your children or spouse beneficiaries
  • Can be structured to have income earned taxable to the lower- income children/ beneficiaries
  • Structure may offer creditor protection benefits for the family
  • Probate fees may be avoided
  • Depending on trust structure, you may no longer have access to the assets for personal use
  • Costs associated with the administration of the trust

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Tax considerations

When assets are transferred into an inter vivos trust, this creates a disposition for tax purposes, which may result in a tax liability for you. There are also annual tax considerations that need to be accounted for. For more information on specific tax planning for trusts, the Fall 2016 edition of RBC Wealth Management Services Perspectives magazine includes key information in the article “Year-end planning checklist for trusts.

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Testamentary trusts

This type of trust is one that comes into effect after death, and the creation of the trust is generally documented within the text of the Will. Testamentary trusts allow individuals to pass specific assets to beneficiaries without allowing them to gain control of the assets. The assets held are invested and managed by the trustee of the trust, with income and capital distributed to the beneficiaries in accordance with wishes as stated in the Will. Testamentary trusts present a potential option to provide for all desired beneficiaries who are part of the family, as it’s possible to establish more than one trust for different family members.

Testamentary trusts

Potential advantagesPotential disadvantages
  • May offer a level of control over the timing for the distribution of assets to beneficiaries
  • May provide an effective solution for concerns around spendthrift beneficiaries and disabled beneficiaries
  • Costs associated with the maintenance of the trust
  • Probate fees may be applicable for assets funding the trust

Trust structures for blended families

With the rise of stepfamilies and blended families in Canada, there’s a greater need for assistance in navigating the often complicated aspects that these family types face in estate planning and passing down wealth. Those who are part of a blended family may be challenged by potentially competing interests while at the same time trying to ensure family members are treated equitably.

For those in a blended family situation, trusts may offer the ability to tailor according to individual needs and preferences. The following chart outlines some of the key types.

Trust structures

TrustDetails and potential advantages
Alter Ego
  • Inter vivos (during lifetime)
  • Must be 65 years of age or older when establishing the trust
  • The settlor (creator of the trust) is entitled to income and no other person other than the settlor can receive or use income or capital from the trust during the settlor’s lifetime; at death, assets are then distributed according to trust agreement
  • Assets transfer outside of the estate and avoids probate fees; may protect against challenges to the Will
Joint Partner
  • Inter vivos
  • Must be 65 years of age or older when establishing the trust
  • Only the settlor and his or her spouse or common-law partner are entitled to receive income from the trust until both individuals pass away
  • No other person other than the settlor and their spouse or common-law partner can receive or use income or capital from the trust during their lifetime
  • Ensures surviving spouse or partner continues to receive the benefit of the assets during his or her lifetime
Testamentary
  • Comes into effect after death; generally, terms set out in the Will
  • Presents options to provide for all desired beneficiaries who are part of the family
  • May offer a level of control over the timing for the distribution of assets to beneficiaries
  • Possible to establish more than one trust for different family members
Testamentary Spousal
  • Comes into effect after death; generally, terms set out in the Will
  • Provides support to surviving spouse; can also direct that on spouse’s or partner’s death, remaining assets get distributed to children
  • Creates tax-deferral benefits on the rollover of assets to the spousal trust and ability to protect family interests
  • Spouse must be entitled to income from their trust during their lifetime. No one else can receive or use the income or capital of the trust during the spouse’s lifetime

Note: For more planning information specific to blended families, please view the Fall 2016 edition of RBC Wealth Management Services Perspectives magazine article, “Making wealth transfer work for blended families.

Outright gifts and inheritances

In considering all of the options available, the most straightforward approach to passing down wealth is through outright gifts during an individual’s lifetime. For some, the reasoning behind this approach is largely to help out children or grandchildren with activities such as purchasing a home or pursuing education. Among those who prefer this option, some of the value is often generated in seeing the benefits of those gifts during their lifetime.

When considering giving a lifetime gift, an important drawback to recognize is that in doing so, you relinquish all control over the asset, which for some, may not be an acceptable outcome. Depending on individual circumstances, concerns often centre around how those assets will be used and whether it will negatively impact the receiver’s motivation to achieve success on their own. These same concerns often also hold true for inheritances.

When leaving assets to your children or grandchildren, it’s important to first examine a few key considerations.

  1. A gift or inheritance could become matrimonial Depending on an individual’s province of residence, matrimonial property claims may apply to assets left to children and to the income  generated  by these assets. (E.g. If an individual deposits his or her inheritance into a joint account with his or her spouse or uses the funds to purchase a matrimonial home, the joint account or the home may be subject to a matrimonial property claim and division if the individual divorces his or her spouse.) Therefore, children receiving these assets may want to keep them separate and not contribute them to the marriage.
  2. Spendthrift beneficiaries. A common worry among some parents is the fear their children may spend their inheritance carelessly or make poor financial decisions, without any planning for their own future. This is where ongoing communication and education around financial responsibility and money management becomes so valuable.
  3. Creditor claims. Some parents have concerns around exposing any gifted assets or inheritances to their children’s As part of their estate plan, individuals may search for ways to provide their children with some protection while allowing for flexibility to access funds. Here, it’s essential to consult with a qualified legal advisor regarding any creditor protection options available to you.

Joint tenancy with right of survivorship

Another simple form of transferring assets is through the registration of assets in joint ownership, specifically Joint Tenancy With Right of Survivorship (JTWROS). This form of ownership allows two or more people to own an asset together, such as a vacation property, for example.

All individuals listed as joint tenants share ownership and control of the asset, and upon the death of one of the individuals, the ownership automatically passes to the surviving individual(s) who are part of the agreement. By passing directly to the surviving individual(s), the asset is not part of the estate and as such isn’t subject to provincial probate fees.

Joint assets

Potential advantagesPotential disadvantages
  • Simplifies administration of the estate
  • Avoids probate until death of last surviving tenant
  • Doesn’t prevent joint tenant from using or taking the jointly held assets before death
  • May be claimed by creditors
  • Precludes the use of certain estate planning tools (such as testamentary spousal trusts) because they do not flow through the estate

Note: Quebec residents cannot use a Joint Tenancy With Right Of Survivorship (JTWROS) agreement, since an automatic right of survivorship does not exist under Quebec law.

Beneficiary designations

An additional method for wealth transfer that falls under the “simple” umbrella is through the use of beneficiary designations on registered plans, Tax-Free Savings Accounts (not available to residents of Quebec) and life insurance policies. The main benefit here is that assets pass directly to the beneficiaries without having to go through the estate. What’s important to keep in mind, however, is ensuring these designations remain updated and is consistent with any designation made in your Will.

The paramount role of communication

Regardless of approach or timing of the transfer, central to the success of passing down wealth is open and ongoing communication with family members. For many, estate planning and wealth transfer discussions often stir up feelings of discomfort, as there may be strong emotions involved. But despite the potential discomfort in having those conversations, open dialogue among all those who are or will be included in the estate plans is so crucial, for two key reasons. First, it provides the valuable opportunity to educate children and grandchildren about financial responsibility and money management, and also helps them better understand the types of structures and planning decisions that have been put into place. Second, it opens up discussions around why certain strategies have been used and gives the receiving generation a clearer idea as to why decisions were made in a certain way, effectively decreasing the likelihood for conflict and potential emotional upset and disruption to family harmony.