Is a testamentary trust right for your estate plan?

If you are bequeathing wealth, you’ll not only be faced with a decision of who should receive it—children, charities, friends, siblings, etc.—but also the dilemma of the best way to transfer those assets, in what amounts and when.

Regardless of who will be your beneficiary, you don’t want to be faced with a worst-case scenario—for example, if you pass away while your kids are still young. How can and should your assets be distributed, presumably over the long term? Or, you may want to avoid giving spendthrift adult children all of your money at once after you die. What should you do?

What is a trust?

One of the most effective ways to control how wealth is distributed is by setting up a trust, which is a relationship between three parties: the settlor or testator (the person establishing the trust); the trustee and the beneficiaries.

Essentially, the trustee is responsible for administering the trust assets for the benefit of the beneficiaries. There are two types of trusts: inter vivos, or living trusts set up during a person’s lifetime; and testamentary trusts, which take effect after a person’s death.

Here we’re looking at testamentary trusts as a strategy for individuals to pass along wealth to family members or other beneficiaries:

Testamentary trusts: A potentially wise estate-planning move

Because a testamentary trust comes into effect when a person dies, the terms of the trust are established in a Will or through a separate trust document.

The Will should document the assets to be held in the trust; who the beneficiaries are, who the trustee(s) is and what their powers will be, the duration of the trust and how distributions will be made.

“A trust enables you to maintain a degree of control over transferred assets, by setting out who gets the benefit of what and over what period of time,” says Tracey Woo, chief operating officer and vice president of RBC Royal Trust. “In many circumstances, having the protection of a trust makes for good estate planning.”

Who could benefit the most from a testamentary trust?

Testamentary trusts are particularly useful for people with blended families, spendthrift heirs or beneficiaries with disabilities, Woo says, because of how they can control and restrict the distribution of assets.

For example, if a blended family is involved, a trust could lay out that a second spouse can continue to receive benefits from an estate until they die and upon their death, the capital of the trust is to be distributed among the testator’s children from a prior marriage.

“Trusts can be personalized as you see fit to meet your long-term intentions and the needs of your family,” says Bianca Krueger, senior manager, Professional Development at RBC Royal Trust. When trusts are properly structured, they also protect assets from potential creditors or matrimonial claims.

“Often parents are concerned that their most sentimental and valuable assets, such as the family cottage, will end up in the wrong hands. A trust, when prepared well, can add a layer of protection, and reduce the potential squabbling among family members,” notes Krueger.

Testamentary trusts are also a good tool for anyone who has a child with a disability. Individuals can set up a Qualified Disability Trust (QDT) for the benefit of the child in their Will, which also has some tax advantages, and can ensure the child has financial security in the future.

For a trust to qualify as a QDT under the Income Tax Act, there must be at least one beneficiary of the trust who receives the federal disability tax credit and elects to treat the trust as a QDT.

In addition to allowing a beneficiary to benefit from the growth of assets, you will get a graduated rate taxation  in that trust, Woo says. Graduated rates for other types of testamentary trusts were eliminated by the federal government in 2016 and are now taxed at the highest marginal rate.

While trusts are highly recommended to protect and control assets, there are some drawbacks to be aware of beforehand. Trusts can be complex and time consuming to establish and run. As such, people considering it are advised to seek professional legal and tax advice.

“It absolutely comes down to balancing the costs associated with developing and running a trust and the benefits it provides,” says Krueger on deciding whether or not to pursue a trust.

Finding the right trustee

Picking a trustee to help transfer the estate is key, says Woo. You can name an individual to the role or choose a trust company.

Woo says people should be careful about who they appoint given that the job is complex and time consuming. In some circumstances it may not be wise to choose a family member, Woo adds.

“You’re putting a lot of trust in them and hope they fulfill all of the duties and obligations you set out in your trust agreement. It’s not a responsibility to be taken lightly,” she says.

Krueger adds, “A lot of people choose an impartial trust company to manage a trust as it removes the variables that life throws at individuals. People move, become ill, go through bankruptcies and divorce and fights happen between family and friends. A trust company removes those obstacles and provides for longevity.”

This article was updated on August 23, 2024.