how to avoid estate administration tax in ontario

The executor is personally liable for the estate and its distributions. But if you’d been charged personal or business income tax, you would’ve had to pay $30,000 (assuming the same marginal tax rate; more if this income pushed you into a new tax bracket). If the family home is jointly owned by the parents and a child who dies before the parents, that child’s share of the home could evaporate to the benefit of the parents and any other children who are also joint owners. We strongly recommend that you avoid these ‘joint tenancy to avoid probate tax schemes’ unless you: If you want proper advice that structures your estate in a way that is tax efficient and effective, please contact us. Leave a valid will. t: 1 (888) 995-0075 This is very good because Ontario’s probate tax is only levied on those assets that are transferred pursuant to the deceased’s Will. This means that the estate pays the taxes owed to the government, rather than the beneficiaries paying. statute that governs Estate Administration Tax in Ontario. In Ontario, probate fees are: However, an estate with beneficiaries living outside of Canada presents challenges for the executor, as distributions of property to non-residents involve a number of additional tax … Usually this has been done to the detriment of the beneficiaries and is often the result of a discussion that a family member has had with a friend, bank employee or other person. For instance, for bank accounts held in joint tenancy between a parent and adult child, the presumption is that the account IS part of the estate and must be probated – the onus of proving that the bank account is a gift to the adult child and not part of the estate lies on the adult child. 2. The changes will affect all estates that go through the Ontario probate process. Estate administration in Ontario can be a complex legal process. Remember that probate is a provincial matter. In estate planning, Canadians don’t have to contend with an estate tax the way U.S. citizens do. 1998, c. 34, Sched., s. 2 (1). Ontario Estate Administration Tax Calculator. If your goal with the transfer is to avoid estate administration tax (probate), remember that this cost may not be that costly after all. The less property you have in your estate when you die, the lower your probate fees. R.S.O. But even then, the fees are just 1.5% on estates exceeding $50,000. ], And never miss news, career opportunities and event announcements, 50 O'Connor Street, Suite 300 What is inheritance tax? Avoid probate fees. Probate tax is collected when the executor makes application to the Superior Court of Justice for letters probate (formally called a Certificate of Appointment of Estate Trustee with a Will). Amount based on estimate (3) If the applicant is able only to estimate the value of the estate when making the application, the amount to be deposited shall be based on the estimated value. In most cases, that person is the grieving spouse or children. 1. A few years ago, I acted for a couple who had both lost their spouses and had just been married. Estate Information Return This return is to be completed in addition to an application for a certificate of appointment of estate trustee submitted to the Courthouse (Ministry of the Attorney General). Any probate tax that is payable is not deductible in calculating income or capital gains taxes. Minimizing fees There are a number of ways to minimize probate fees. Any person who receives an Estate Certificate (also known as Probate) after January 1, 2020, is required to file an Estate Information Return within 180 days. For those parents who want to give money to a child to purchase a house, it is better for the parent to have loaned (with a signed promissory note or registered mortgage) the money to the child and spouse with possibly a provision in the parent’s Will to forgive the loan as part of the child’s inheritance. An asset in joint names with a surviving person will be transferred to that person by operation of law (subject to some possible review that we shall discuss later) and not by operation of the deceased’s Will. By A parent may give a child a large sum of money to help the child purchase a house. Legislation: Estate Administration Tax Act. They try to avoid it by holding property with children as joint owners, thus keeping it out of the estate. If a child who is a joint owner separates from his or her own spouse the child’s share of the parents’ home might form part of the child’s matrimonial property–and more so if the child and his or her spouse have been living in the home with the parents. Don’t count on it. Insurance is another common issue. In most cases, spouses, however defined, arrange their assets so that both jointly own their home, have joint bank accounts, have investments in joint names or with each other as named beneficiaries and have each other as named beneficiaries, on life insurance/death benefit policies and RSPs/RIFs. Not what the parent might have wanted. Once your Will is signed, be very careful in making changes in asset ownership simply to save a few dollars in probate taxes. One of the pieces of legislation governing estate administration in Ontario is the Estates Administration Act. A parent buys a life insurance policy with the intent to divide it equally between the parent’s two children. Probate /Estate Taxes in Ontario Rather than make the estate the beneficiary (and thereby attracting probate taxes), the parent makes only one of the children a beneficiary (the child has promised the parent to share the insurance with his/her sibling). He was concerned about land transfer tax because as a general rule, land transfer tax is always payable when a beneficial interest is transferred from one person to another, subject to excemptions such as inter-spousal transfers. This onus is often very hard to rebut. For some reason, Ontario’s probate tax (formally called Estate Administration Tax) seems to drive people crazy. [This article was originally published in the Jan/Feb 2012 issue of Fifty-Five Plus Magazine. This type of bad planning might take the form of transferring the family home into the names of the parents and one or more children (who may or may not live in the family home any more) as joint owners. Mississauga, ON L4Z 1S1. Recent revisions to the Estate Administration Tax Act (Ontario), under which the Province charges tax of approximately 1.5% of the value of an estate when a will is probated by the court (colloquially “probate fees”), should be of concern to everyone because of the new reporting, enforcement and penalty provisions in the Act, explains Susannah B. Roth of O’Sullivan Estate Lawyers. Of course, this requires advance planning and preparation by the testator (the person making the will), and, a lack of dispute among the potential executors and beneficiaries. If you die without a valid will, your estate gets settled according to the laws of your province, rather than according to your personal wishes. Protect your Estate from Probate Fees for Free Call us today for a complimentary consultation 1-844-NO-PROB8 (844-667-7628) AVOID PROBATE FEES What is Probate? Your Situation Low income, owner, parent, student, support payments… Income Tax Return Online filing, deadline, line-by-line help… But the idea of having to pay the Province of Ontario a probate tax of 1.5 per cent appears to twist some people out of shape. Executor’s Checklist 555 Legget Drive “You might actually save tax overall because of how graduated tax rates work,” said Natale. Our address for deliveries in  Mississauga is: Miltons Estates Law Please contact us to arrange a meeting. Assets that are in joint names or with named beneficiaries do not form part of the deceased’s estate. Ontario has the highest Estate Administration Tax (EAT) the country. Then, in the 1990s, the fees were increased and converted into the Estate Administration Tax. If a child who is a joint owner wishes to purchase his or her own home, he or she will have possibly lost the Ontario Land Transfer Tax Credit of $2,000 to which first time Ontario homebuyers are eligible. You may also wish to name a secondary beneficiary, in case the primary beneficiary predeceases you. There will also be “estate administration tax” – more commonly called “probate fees”. The current Ontario Government has implemented a couple of changes to the calculation of Estate Administration Tax (“EAT”, often called probate fees) and the process for EAT refunds which are due to take effect January 1st. While this may seem a modest sum compared to other taxes, for individuals whose assets include valuable shares of a privately held corporation it is worthwhile doing some planning to avoid this tax altogether. Gifts to purchase a home also can be a problem. 1990, and such conveyances are not subject to the tax. Except where a spouse is a noncitizen, neither lifetime gifts nor bequests at … This can be a more complicated process, with higher … When a person dies they may leave behind belongings, real estate and other assets which is called their estate. Send us an email and let’s talk about how we can help you. have carefully thought through all of the consequences, execute the plan very carefully and ensure that it is part of a well integrated estate plan, and. 2. Ontario Estate Administration Tax Calculator Effective January 1, 2020 the Estate Administration Tax is eliminated for taxable estates of $50,000 or less, and will be reduced by $250 for larger taxable estates. Ottawa, ON K1G 3, e: info@ontario-probate.ca But in choosing your retirement home , you also want a safe place, clean water, good food, and … The most common effective technique after death is to arrange for the legal transfer of all assets to the intended beneficiaries without probate. f: 1 (866) 397-9227, Probate in Ontario Probate fees are a tax in Ontario called the estate administration tax. Life insurance itself does not reduce your exposure to income tax on death — it’s simply used as a means to fund a tax liability on death so the estate does not have to be crippled to pay the tax. However, what many people don’t realize is that a “deemed disposition tax… 200-15 Fitzgerald Road A Cautionary Tale: Plan ahead to designate the beneficiaries for your Ontario Pension. For instance, a remarkable number of people think that it is a good idea to put ownership of houses and bank accounts in ‘joint tenancy’ with one of their children solely to avoid estate administration tax, but these attempts often create truly bizarre, unwanted, and sometimes completely unjust results – with one or more children or other beneficiaries potentially being deprived of their rightful share of the estate. real estate). Purchase life insurance. To serve you, we have offices across Ottawa. I very often see a surviving parent transferring one or more bank accounts, GICs or investment accounts into joint names with one or more of his or her children. The proposed changes, announced Thursday … It will be used by the Ministry of Finance to enforce compliance with the Estate Administration Tax Act, 1998. The rate is $5 … Avoid Probate Taxes at your Peril – How Not to Plan your Estate. ON, The person administering the estate (the administrator or executor) must follow the legal requirements of the estate administration process. Making distributions too early. I agree that Ontario’s probate tax—the highest in the country and just slightly higher than British Columbia—is annoying. Life insurance can be a handy estate planning tool. Life insurance is paid directly to the named beneficiary, so the funds never become a part of the probate estate, therefore not subject to probate taxes and fees. For example, a testator may decided to make his or her adult children joint tenants on a bank account. It is a simple form, and has not changed under the new regime. What is Estate Administration Tax Estate Administration Tax, commonly referred to as probate tax or probate fees, is payable on the gross value of a deceased’s worldwide estate (less any mortgages on real estate located in Ontario) other than real estate located outside of Ontario. A client came into see me and wanted to transfer title to his property from his parents name to his and his wife. In Ontario, an estate trustee is the only person with the legal authority to manage or distribute an estate. You do so, however at your peril. But then, Ontario also levies taxes on gasoline and alcohol, which are proportionally much higher. The fees can be as high as approximately 1.5 per cent in Ontario, to no fees in Quebec (for notarial wills). Kanata, ON K2K 2X3, St. Laurent office: How to avoid capital gains tax in Canada when selling property ... Here’s an example. It is better to make either the estate or all of the children beneficiaries instead. Does capital gains tax apply only to real estate? These ways to avoid probate taxes are often based on a complete misunderstanding of the law. The tax is currently about 1.5% of the value of assets flowing through the will probated with the court. After death, depending on the circumstances, it is from time to time possible to avoid probate entirely or reduce the amount of Estate Administration Tax if the estate can be reduced before probate. The Ontario government is proposing to eliminate probate tax on estates valued under $50,000, and to ease the compliance regime involved in the filing of an estate administration return in the province. It is not nearly as large as income taxes on death, but it is still about $15,000 for every $1 million in the estate, with some exceptions. These ‘joint tenancy’ tactics invite hard feelings and expensive litigation; the potential savings (1.5%) are trivial, and the potential costs massive. Our mailing address and address for service is: Miltons Estates Law This is as per the Ontario 2019 Budget. If all of the beneficiaries of a Canadian estate are resident in Canada, administration of an estate is relatively straightforward. 5 ways to manage estate costs. There are several ways to minimize or avoid provincial estate administration taxes. Name beneficiaries on your life insurance policies. Still, many people despise the Ontario tax, which tripled in the early 1990s. Effective January 1, 2020, Ontario eliminated estate administration tax (also known as probate tax) on estates valued under $50,000. • Ontario estate administration tax (“EAT”) is essentially equal to 1.5% of the value of the assets passing under probate (Estate Administration Tax Act, 1998) • Probate, or a Certificate of Appointment of Estate Trustee with a Will is generally required to transfer assets in probate fees) of approximately 1.5% of the value of the deceased’s estate are payable during the certification process. The Ontario Government has implemented a couple of changes to the calculation of Estate Administration Tax (EAT) which came into effect on January 1, 2020. Probate is a term that is often used to refer to the Estate Administration Tax (EAT), that is levied by the Ontario government of the estates of some deceased persons where the estate is worth $50,000 or more. “Because you report 20% capital gain each year, it may allow you to stay in a lower tax bracket whereas if you record 100% of capital gain in one year that could bump you into the top tax bracket and in a province like Ontario you’d pay 53.5% tax on taxable capital gains in the top bracket.” This is difficult, but sometimes possible with very good legal advice to arrange with real estate. 1. The provincial tax is roughly 1.5% of the value of the probate estate. Ottawa, ON CANADA K2H 9G1, Kanata office: Great weather, like avoiding probate taxes, is wonderful. News Links Downloads. Find out more. Tax on capital gains The CRA can charge capital gains tax on anything you sell that makes a profit including stocks, bonds, real estate investments and other assets (most retirement accounts in Canada, however, allow you to defer paying taxes on gains until you actually withdraw the money you made). Alter ego trusts defer the tax until your death, while joint spousal trusts defer the tax until your spouse's death. You must be 65 years old to establish alter-ego or joint spousal living trusts, which allow you to avoid capital gain taxation when transferring assets and minimizing probate exposure. This article provides some background on the EAT, discusses the changes that occurred and how life insurance products can help people deal with the new regime. 1990, c. E.22, s. 11 (2). Deadlines for filing an Estate Information Return (EIR) has also changed. The most common effective planning technique to employ prior to death to minimize probate tax is the use of ‘dual wills’, whereby assets that require probate pass under one will, and other assets that often do not require probate (such as the shares of a family or private business) pass under a separate will that is not subject to probate. Let’s say that years ago you paid $250,000 for a house in Ontario. Effective January 1, 2020, Ontario eliminated estate administration tax (also known as probate tax) on estates valued under $50,000. The fact that a living trust doesn’t allow you to avoid estate tax does not mean a living trust doesn’t make sense, as there are many other significant benefits to creating a living trust. Instead the CRA treats the estate as a sale, unless the estate is inherited by the surviving spouse or common-law partner, where certain exceptions are possible. In Ontario, the fees (officially called an estate administration tax Tax A fee the government charges on income, property, and sales. These changes, announced during the 2019 Ontario Budget, are intended to provide some relief from the onerous estate administration tax regime. Once your Will is signed, be very careful in making changes in asset ownership simply to save a few dollars in probate taxes. Other provinces, like where I live in Ontario, have higher probate fees. The change may be more expensive than you think. 2 (1) A tax determined in accordance with this section is payable to Her Majesty in right of Ontario by the estate of a deceased person immediately upon the issuance of an estate certificate. To serve you, we have offices across the Greater Toronto Area – Toronto, Scarborough, Markham and Mississauga. At that time, you paid $7,000 in taxes and closing fees plus another $28,000 on additions and renovations to the property. As such, executing multiple wills in order to avoid paying estate administration taxes has become a common estate planning tool. Doing estate planning solely to avoid the probate process and probate fees is like choosing the place you retire based solely on the weather. In order to apply to the Court for a Certificate of Appointment in Ontario, an application form must be filed with the Superior Court. On an estate with assets of $500,000, Ontario will levy probate taxes of just under $7,500 (there is a slight sliding scale on the first $50,000 of assets but for discussion purposes, the percentage of 1.5 per cent is used). Suite 800, 1730 St. Laurent Blvd. 15th Floor, 4 Robert Speck Parkway The money goes to finance government programs and other costs. If letters probate are not required in a deceased’s estate, no probate tax is levied or payable. Estate planning is complex. Several times a year, I will meet a family who has organized the family assets to avoid paying any or very much Ontario probate tax. Estate Information Return This return is to be completed in addition to an application for a certificate of appointment of estate trustee submitted to the Courthouse (Ministry of the Attorney General). Among other things, it requires the executor to set out the value of the assets of the estate. If a child who is a joint owner happens to have creditors, then when the family home is sold, the creditors will often have to be paid before the sale proceeds can be disbursed to the parents. Nelligan Law is the name and brand under which the members of Nelligan O’Brien Payne LLP provide legal services. pay the estate administration tax on the estimated value. As death and death taxes occur at the same time, you may find that in this situation a significant portion of your income is taxed in a top tax bracket and therefore could lose about 45 percent to the CRA. Protect your Estate from Probate Fees for Free Call us today for a complimentary consultation 1-844-NO-PROB8 (844-667-7628) AVOID PROBATE FEES. The couple then was advised by someone along the way that it would be much more efficient (and would avoid probate taxes) if they put their bank and other investment accounts into joint names. swear or affirm the estimated value of the estate stated on your application form. For your property to qualify for the preferential capital gains tax rate, you must not be in the business of investing in real estate. These changes, announced during the 2019 Ontario Budget, are intended to provide some relief from the onerous estate administration tax regime. We understand that, at death, taxes often become payable, and we can grudgingly accept income or capital gains taxes that become due at death. For those who want to put the family home into joint names with the children or a child and avoid probate taxes, don’t do it. K1P 6L2, We can arrange to meet you at this address, or at an address across the GTA that suits you better. MARITAL TRANSFERS. It's hard to avoid probate, ... to 1.5% in Ontario. However, many other ‘plans’ designed to minimize probate fees are in fact very bad planning, which create for more trouble and cost than they avoid. Estate taxes do not, by and large, affect the vast majority of Americans, but to those who plan to leave millions upon their death, it pays in spades to understand recent changes to federal estate tax laws so that you can avoid, or at least reduce, estate tax liability. If you think that you have been victimized by a ‘joint tenancy to avoid probate’ tactic which has reduced the size of the estate, please contact us. This is done to attempt to avoid estate administration tax which is payable only if the will is probated. When questioned, the parent will often say that it is to avoid probate tax and, when further questioned, the parent will also say that the joint ownership will not be a problem as the child who is the joint owner will certainly share the account or GIC with his or her siblings as in the parent’s Will. When a person dies, their assets are managed by an estate representative. Probate tax is charged on the total value of a deceased person’s estate. Joint ownership of certain assets with your spouse is one method. Other provinces, like where I live in Ontario, have higher probate fees. © 2020 Nelligan Law. Assets that the deceased had before death but not at the time of death, such as insurance payable to a named beneficiary, assets where there is joint ownership with right of survivorship and real estate outside of Ontario are not included in the value of the estate. Alberta residents are fortunate because the probate fees in Alberta are amongst the lowest in the country, and the maximum is capped at only $525. An attorney can guide you through the process of finding ways to ensure your heirs or … Fax: 613-238-2098General Inquiries: info@nelliganlaw.ca. Canada, Tel: 613-238-8080 On the parent’s death, the child forgets the promise made and keeps the insurance proceeds. The new probate tax requirements are part of Ontario’s Estate Administration Tax Act, 1998. Ottawa Executor’s Duties © Copyright - Miltons IP - All Rights Reserved 2020, Home ownership: joint tenants and tenants in common, Beneficiary designations: TFSA, RRSP, RRIF, pension, insurance, Dependent support obligations and challenges, Wills and marriage, divorce & re-marriage, Retention, revocation and destruction of wills, Disputes about actions of an attorney for property, Estate administration / executor services. But if the child and spouse later separate and the house is sold, not all of that gift may be returned to the child due to the house being a matrimonial home. If … Changes for Ontario’s Estate Administration Tax On January 1, 2013, a new audit and reassessment regime went into effect for Ontario’s Estate ... Each strategy must be used properly, though, to avoid problems, and anyone contemplating the use of these strategies must obtain appropriate tax … The amount of the fee is based on the total value of the property in your estate when you die. Estate Administration Tax. One of the spouses later died and, by right of survivorship, the surviving spouse received almost all of the deceased’s spouse’s assets to the detriment of the children of the deceased’s spouse. Now for a reality check. These taxes or fees can vary considerably from province to province. But even then, the fees are just 1.5% on estates exceeding $50,000. However, your Executor will still have to file your final income tax return (and also possibly pay capital gains taxes on some assets). John Peart is a partner with the Ottawa law firm of Nelligan O’Brien Payne LLP and part of its Wills and Estates Group. So be careful about distributing all of the assets of an estate before assessing what tax owing might result. This bit of knowledge can sometimes be a dangerous thing. This field is for validation purposes and should be left unchanged. John is Certified as a Specialist (CS) in Estates and Trusts Law by the Law Society of Upper Canada and is also a member of the International Society of Trust and Estates Practitioners. A common estate planning tool before assessing what tax owing might result tax requirements are part of the deceased s... These changes, announced during the certification process arrange to meet you at address. Even eliminate estate administration process making changes in asset ownership simply to save a dollars. 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In Ontario is the only person with the estate pays the taxes owed the! After death is to arrange for the value of the property in your estate its. Far outweighs the probate taxes that might be otherwise saved done to attempt to avoid capital tax... Tax: an Overview before Applying for a complimentary consultation 1-844-NO-PROB8 ( 844-667-7628 ) avoid taxes! Property – Know these top 10 tips not to Plan your estate in! Dies they may leave behind belongings, real estate, their assets are managed by an administration! Fees ) of approximately 1.5 % on estates exceeding $ 50,000 contains all the assets the. 15Th Floor, 4 Robert Speck Parkway Mississauga, on L4Z 1S1 his wife estate planning tool of approximately %! Child forgets the promise made and keeps how to avoid estate administration tax in ontario insurance proceeds on an estate... A beneficiary generally receives their inheritance tax Free, and such conveyances are not subject to the government, than. 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The executor is personally liable for the estate and its distributions. But if you’d been charged personal or business income tax, you would’ve had to pay $30,000 (assuming the same marginal tax rate; more if this income pushed you into a new tax bracket). If the family home is jointly owned by the parents and a child who dies before the parents, that child’s share of the home could evaporate to the benefit of the parents and any other children who are also joint owners. We strongly recommend that you avoid these ‘joint tenancy to avoid probate tax schemes’ unless you: If you want proper advice that structures your estate in a way that is tax efficient and effective, please contact us. Leave a valid will. t: 1 (888) 995-0075 This is very good because Ontario’s probate tax is only levied on those assets that are transferred pursuant to the deceased’s Will. This means that the estate pays the taxes owed to the government, rather than the beneficiaries paying. statute that governs Estate Administration Tax in Ontario. In Ontario, probate fees are: However, an estate with beneficiaries living outside of Canada presents challenges for the executor, as distributions of property to non-residents involve a number of additional tax … Usually this has been done to the detriment of the beneficiaries and is often the result of a discussion that a family member has had with a friend, bank employee or other person. For instance, for bank accounts held in joint tenancy between a parent and adult child, the presumption is that the account IS part of the estate and must be probated – the onus of proving that the bank account is a gift to the adult child and not part of the estate lies on the adult child. 2. The changes will affect all estates that go through the Ontario probate process. Estate administration in Ontario can be a complex legal process. Remember that probate is a provincial matter. In estate planning, Canadians don’t have to contend with an estate tax the way U.S. citizens do. 1998, c. 34, Sched., s. 2 (1). Ontario Estate Administration Tax Calculator. If your goal with the transfer is to avoid estate administration tax (probate), remember that this cost may not be that costly after all. The less property you have in your estate when you die, the lower your probate fees. R.S.O. But even then, the fees are just 1.5% on estates exceeding $50,000. ], And never miss news, career opportunities and event announcements, 50 O'Connor Street, Suite 300 What is inheritance tax? Avoid probate fees. Probate tax is collected when the executor makes application to the Superior Court of Justice for letters probate (formally called a Certificate of Appointment of Estate Trustee with a Will). Amount based on estimate (3) If the applicant is able only to estimate the value of the estate when making the application, the amount to be deposited shall be based on the estimated value. In most cases, that person is the grieving spouse or children. 1. A few years ago, I acted for a couple who had both lost their spouses and had just been married. Estate Information Return This return is to be completed in addition to an application for a certificate of appointment of estate trustee submitted to the Courthouse (Ministry of the Attorney General). Any probate tax that is payable is not deductible in calculating income or capital gains taxes. Minimizing fees There are a number of ways to minimize probate fees. Any person who receives an Estate Certificate (also known as Probate) after January 1, 2020, is required to file an Estate Information Return within 180 days. For those parents who want to give money to a child to purchase a house, it is better for the parent to have loaned (with a signed promissory note or registered mortgage) the money to the child and spouse with possibly a provision in the parent’s Will to forgive the loan as part of the child’s inheritance. An asset in joint names with a surviving person will be transferred to that person by operation of law (subject to some possible review that we shall discuss later) and not by operation of the deceased’s Will. By A parent may give a child a large sum of money to help the child purchase a house. Legislation: Estate Administration Tax Act. They try to avoid it by holding property with children as joint owners, thus keeping it out of the estate. If a child who is a joint owner separates from his or her own spouse the child’s share of the parents’ home might form part of the child’s matrimonial property–and more so if the child and his or her spouse have been living in the home with the parents. Don’t count on it. Insurance is another common issue. In most cases, spouses, however defined, arrange their assets so that both jointly own their home, have joint bank accounts, have investments in joint names or with each other as named beneficiaries and have each other as named beneficiaries, on life insurance/death benefit policies and RSPs/RIFs. Not what the parent might have wanted. Once your Will is signed, be very careful in making changes in asset ownership simply to save a few dollars in probate taxes. One of the pieces of legislation governing estate administration in Ontario is the Estates Administration Act. A parent buys a life insurance policy with the intent to divide it equally between the parent’s two children. Probate /Estate Taxes in Ontario Rather than make the estate the beneficiary (and thereby attracting probate taxes), the parent makes only one of the children a beneficiary (the child has promised the parent to share the insurance with his/her sibling). He was concerned about land transfer tax because as a general rule, land transfer tax is always payable when a beneficial interest is transferred from one person to another, subject to excemptions such as inter-spousal transfers. This onus is often very hard to rebut. For some reason, Ontario’s probate tax (formally called Estate Administration Tax) seems to drive people crazy. [This article was originally published in the Jan/Feb 2012 issue of Fifty-Five Plus Magazine. This type of bad planning might take the form of transferring the family home into the names of the parents and one or more children (who may or may not live in the family home any more) as joint owners. Mississauga, ON L4Z 1S1. Recent revisions to the Estate Administration Tax Act (Ontario), under which the Province charges tax of approximately 1.5% of the value of an estate when a will is probated by the court (colloquially “probate fees”), should be of concern to everyone because of the new reporting, enforcement and penalty provisions in the Act, explains Susannah B. Roth of O’Sullivan Estate Lawyers. Of course, this requires advance planning and preparation by the testator (the person making the will), and, a lack of dispute among the potential executors and beneficiaries. If you die without a valid will, your estate gets settled according to the laws of your province, rather than according to your personal wishes. Protect your Estate from Probate Fees for Free Call us today for a complimentary consultation 1-844-NO-PROB8 (844-667-7628) AVOID PROBATE FEES What is Probate? Your Situation Low income, owner, parent, student, support payments… Income Tax Return Online filing, deadline, line-by-line help… But the idea of having to pay the Province of Ontario a probate tax of 1.5 per cent appears to twist some people out of shape. Executor’s Checklist 555 Legget Drive “You might actually save tax overall because of how graduated tax rates work,” said Natale. Our address for deliveries in  Mississauga is: Miltons Estates Law Please contact us to arrange a meeting. Assets that are in joint names or with named beneficiaries do not form part of the deceased’s estate. Ontario has the highest Estate Administration Tax (EAT) the country. Then, in the 1990s, the fees were increased and converted into the Estate Administration Tax. If a child who is a joint owner wishes to purchase his or her own home, he or she will have possibly lost the Ontario Land Transfer Tax Credit of $2,000 to which first time Ontario homebuyers are eligible. You may also wish to name a secondary beneficiary, in case the primary beneficiary predeceases you. There will also be “estate administration tax” – more commonly called “probate fees”. The current Ontario Government has implemented a couple of changes to the calculation of Estate Administration Tax (“EAT”, often called probate fees) and the process for EAT refunds which are due to take effect January 1st. While this may seem a modest sum compared to other taxes, for individuals whose assets include valuable shares of a privately held corporation it is worthwhile doing some planning to avoid this tax altogether. Gifts to purchase a home also can be a problem. 1990, and such conveyances are not subject to the tax. Except where a spouse is a noncitizen, neither lifetime gifts nor bequests at … This can be a more complicated process, with higher … When a person dies they may leave behind belongings, real estate and other assets which is called their estate. Send us an email and let’s talk about how we can help you. have carefully thought through all of the consequences, execute the plan very carefully and ensure that it is part of a well integrated estate plan, and. 2. Ontario Estate Administration Tax Calculator Effective January 1, 2020 the Estate Administration Tax is eliminated for taxable estates of $50,000 or less, and will be reduced by $250 for larger taxable estates. Ottawa, ON K1G 3, e: info@ontario-probate.ca But in choosing your retirement home , you also want a safe place, clean water, good food, and … The most common effective technique after death is to arrange for the legal transfer of all assets to the intended beneficiaries without probate. f: 1 (866) 397-9227, Probate in Ontario Probate fees are a tax in Ontario called the estate administration tax. Life insurance itself does not reduce your exposure to income tax on death — it’s simply used as a means to fund a tax liability on death so the estate does not have to be crippled to pay the tax. However, what many people don’t realize is that a “deemed disposition tax… 200-15 Fitzgerald Road A Cautionary Tale: Plan ahead to designate the beneficiaries for your Ontario Pension. For instance, a remarkable number of people think that it is a good idea to put ownership of houses and bank accounts in ‘joint tenancy’ with one of their children solely to avoid estate administration tax, but these attempts often create truly bizarre, unwanted, and sometimes completely unjust results – with one or more children or other beneficiaries potentially being deprived of their rightful share of the estate. real estate). Purchase life insurance. To serve you, we have offices across Ottawa. I very often see a surviving parent transferring one or more bank accounts, GICs or investment accounts into joint names with one or more of his or her children. The proposed changes, announced Thursday … It will be used by the Ministry of Finance to enforce compliance with the Estate Administration Tax Act, 1998. The rate is $5 … Avoid Probate Taxes at your Peril – How Not to Plan your Estate. ON, The person administering the estate (the administrator or executor) must follow the legal requirements of the estate administration process. Making distributions too early. I agree that Ontario’s probate tax—the highest in the country and just slightly higher than British Columbia—is annoying. Life insurance can be a handy estate planning tool. Life insurance is paid directly to the named beneficiary, so the funds never become a part of the probate estate, therefore not subject to probate taxes and fees. For example, a testator may decided to make his or her adult children joint tenants on a bank account. It is a simple form, and has not changed under the new regime. What is Estate Administration Tax Estate Administration Tax, commonly referred to as probate tax or probate fees, is payable on the gross value of a deceased’s worldwide estate (less any mortgages on real estate located in Ontario) other than real estate located outside of Ontario. A client came into see me and wanted to transfer title to his property from his parents name to his and his wife. In Ontario, an estate trustee is the only person with the legal authority to manage or distribute an estate. You do so, however at your peril. But then, Ontario also levies taxes on gasoline and alcohol, which are proportionally much higher. The fees can be as high as approximately 1.5 per cent in Ontario, to no fees in Quebec (for notarial wills). Kanata, ON K2K 2X3, St. Laurent office: How to avoid capital gains tax in Canada when selling property ... Here’s an example. It is better to make either the estate or all of the children beneficiaries instead. Does capital gains tax apply only to real estate? These ways to avoid probate taxes are often based on a complete misunderstanding of the law. The tax is currently about 1.5% of the value of assets flowing through the will probated with the court. After death, depending on the circumstances, it is from time to time possible to avoid probate entirely or reduce the amount of Estate Administration Tax if the estate can be reduced before probate. The Ontario government is proposing to eliminate probate tax on estates valued under $50,000, and to ease the compliance regime involved in the filing of an estate administration return in the province. It is not nearly as large as income taxes on death, but it is still about $15,000 for every $1 million in the estate, with some exceptions. These ‘joint tenancy’ tactics invite hard feelings and expensive litigation; the potential savings (1.5%) are trivial, and the potential costs massive. Our mailing address and address for service is: Miltons Estates Law This is as per the Ontario 2019 Budget. If all of the beneficiaries of a Canadian estate are resident in Canada, administration of an estate is relatively straightforward. 5 ways to manage estate costs. There are several ways to minimize or avoid provincial estate administration taxes. Name beneficiaries on your life insurance policies. Still, many people despise the Ontario tax, which tripled in the early 1990s. Effective January 1, 2020, Ontario eliminated estate administration tax (also known as probate tax) on estates valued under $50,000. • Ontario estate administration tax (“EAT”) is essentially equal to 1.5% of the value of the assets passing under probate (Estate Administration Tax Act, 1998) • Probate, or a Certificate of Appointment of Estate Trustee with a Will is generally required to transfer assets in probate fees) of approximately 1.5% of the value of the deceased’s estate are payable during the certification process. The Ontario Government has implemented a couple of changes to the calculation of Estate Administration Tax (EAT) which came into effect on January 1, 2020. Probate is a term that is often used to refer to the Estate Administration Tax (EAT), that is levied by the Ontario government of the estates of some deceased persons where the estate is worth $50,000 or more. “Because you report 20% capital gain each year, it may allow you to stay in a lower tax bracket whereas if you record 100% of capital gain in one year that could bump you into the top tax bracket and in a province like Ontario you’d pay 53.5% tax on taxable capital gains in the top bracket.” This is difficult, but sometimes possible with very good legal advice to arrange with real estate. 1. The provincial tax is roughly 1.5% of the value of the probate estate. Ottawa, ON CANADA K2H 9G1, Kanata office: Great weather, like avoiding probate taxes, is wonderful. News Links Downloads. Find out more. Tax on capital gains The CRA can charge capital gains tax on anything you sell that makes a profit including stocks, bonds, real estate investments and other assets (most retirement accounts in Canada, however, allow you to defer paying taxes on gains until you actually withdraw the money you made). Alter ego trusts defer the tax until your death, while joint spousal trusts defer the tax until your spouse's death. You must be 65 years old to establish alter-ego or joint spousal living trusts, which allow you to avoid capital gain taxation when transferring assets and minimizing probate exposure. This article provides some background on the EAT, discusses the changes that occurred and how life insurance products can help people deal with the new regime. 1990, c. E.22, s. 11 (2). Deadlines for filing an Estate Information Return (EIR) has also changed. The most common effective planning technique to employ prior to death to minimize probate tax is the use of ‘dual wills’, whereby assets that require probate pass under one will, and other assets that often do not require probate (such as the shares of a family or private business) pass under a separate will that is not subject to probate. Let’s say that years ago you paid $250,000 for a house in Ontario. Effective January 1, 2020, Ontario eliminated estate administration tax (also known as probate tax) on estates valued under $50,000. The fact that a living trust doesn’t allow you to avoid estate tax does not mean a living trust doesn’t make sense, as there are many other significant benefits to creating a living trust. Instead the CRA treats the estate as a sale, unless the estate is inherited by the surviving spouse or common-law partner, where certain exceptions are possible. In Ontario, the fees (officially called an estate administration tax Tax A fee the government charges on income, property, and sales. These changes, announced during the 2019 Ontario Budget, are intended to provide some relief from the onerous estate administration tax regime. Once your Will is signed, be very careful in making changes in asset ownership simply to save a few dollars in probate taxes. Other provinces, like where I live in Ontario, have higher probate fees. The change may be more expensive than you think. 2 (1) A tax determined in accordance with this section is payable to Her Majesty in right of Ontario by the estate of a deceased person immediately upon the issuance of an estate certificate. To serve you, we have offices across the Greater Toronto Area – Toronto, Scarborough, Markham and Mississauga. At that time, you paid $7,000 in taxes and closing fees plus another $28,000 on additions and renovations to the property. As such, executing multiple wills in order to avoid paying estate administration taxes has become a common estate planning tool. Doing estate planning solely to avoid the probate process and probate fees is like choosing the place you retire based solely on the weather. In order to apply to the Court for a Certificate of Appointment in Ontario, an application form must be filed with the Superior Court. On an estate with assets of $500,000, Ontario will levy probate taxes of just under $7,500 (there is a slight sliding scale on the first $50,000 of assets but for discussion purposes, the percentage of 1.5 per cent is used). Suite 800, 1730 St. Laurent Blvd. 15th Floor, 4 Robert Speck Parkway The money goes to finance government programs and other costs. If letters probate are not required in a deceased’s estate, no probate tax is levied or payable. Estate planning is complex. Several times a year, I will meet a family who has organized the family assets to avoid paying any or very much Ontario probate tax. Estate Information Return This return is to be completed in addition to an application for a certificate of appointment of estate trustee submitted to the Courthouse (Ministry of the Attorney General). Among other things, it requires the executor to set out the value of the assets of the estate. If a child who is a joint owner happens to have creditors, then when the family home is sold, the creditors will often have to be paid before the sale proceeds can be disbursed to the parents. Nelligan Law is the name and brand under which the members of Nelligan O’Brien Payne LLP provide legal services. pay the estate administration tax on the estimated value. As death and death taxes occur at the same time, you may find that in this situation a significant portion of your income is taxed in a top tax bracket and therefore could lose about 45 percent to the CRA. Protect your Estate from Probate Fees for Free Call us today for a complimentary consultation 1-844-NO-PROB8 (844-667-7628) AVOID PROBATE FEES. The couple then was advised by someone along the way that it would be much more efficient (and would avoid probate taxes) if they put their bank and other investment accounts into joint names. swear or affirm the estimated value of the estate stated on your application form. For your property to qualify for the preferential capital gains tax rate, you must not be in the business of investing in real estate. These changes, announced during the 2019 Ontario Budget, are intended to provide some relief from the onerous estate administration tax regime. We understand that, at death, taxes often become payable, and we can grudgingly accept income or capital gains taxes that become due at death. For those who want to put the family home into joint names with the children or a child and avoid probate taxes, don’t do it. K1P 6L2, We can arrange to meet you at this address, or at an address across the GTA that suits you better. MARITAL TRANSFERS. It's hard to avoid probate, ... to 1.5% in Ontario. However, many other ‘plans’ designed to minimize probate fees are in fact very bad planning, which create for more trouble and cost than they avoid. Estate taxes do not, by and large, affect the vast majority of Americans, but to those who plan to leave millions upon their death, it pays in spades to understand recent changes to federal estate tax laws so that you can avoid, or at least reduce, estate tax liability. If you think that you have been victimized by a ‘joint tenancy to avoid probate’ tactic which has reduced the size of the estate, please contact us. This is done to attempt to avoid estate administration tax which is payable only if the will is probated. When questioned, the parent will often say that it is to avoid probate tax and, when further questioned, the parent will also say that the joint ownership will not be a problem as the child who is the joint owner will certainly share the account or GIC with his or her siblings as in the parent’s Will. When a person dies, their assets are managed by an estate representative. Probate tax is charged on the total value of a deceased person’s estate. Joint ownership of certain assets with your spouse is one method. Other provinces, like where I live in Ontario, have higher probate fees. © 2020 Nelligan Law. Assets that the deceased had before death but not at the time of death, such as insurance payable to a named beneficiary, assets where there is joint ownership with right of survivorship and real estate outside of Ontario are not included in the value of the estate. Alberta residents are fortunate because the probate fees in Alberta are amongst the lowest in the country, and the maximum is capped at only $525. An attorney can guide you through the process of finding ways to ensure your heirs or … Fax: 613-238-2098General Inquiries: info@nelliganlaw.ca. Canada, Tel: 613-238-8080 On the parent’s death, the child forgets the promise made and keeps the insurance proceeds. The new probate tax requirements are part of Ontario’s Estate Administration Tax Act, 1998. Ottawa Executor’s Duties © Copyright - Miltons IP - All Rights Reserved 2020, Home ownership: joint tenants and tenants in common, Beneficiary designations: TFSA, RRSP, RRIF, pension, insurance, Dependent support obligations and challenges, Wills and marriage, divorce & re-marriage, Retention, revocation and destruction of wills, Disputes about actions of an attorney for property, Estate administration / executor services. But if the child and spouse later separate and the house is sold, not all of that gift may be returned to the child due to the house being a matrimonial home. If … Changes for Ontario’s Estate Administration Tax On January 1, 2013, a new audit and reassessment regime went into effect for Ontario’s Estate ... Each strategy must be used properly, though, to avoid problems, and anyone contemplating the use of these strategies must obtain appropriate tax … The amount of the fee is based on the total value of the property in your estate when you die. Estate Administration Tax. One of the spouses later died and, by right of survivorship, the surviving spouse received almost all of the deceased’s spouse’s assets to the detriment of the children of the deceased’s spouse. Now for a reality check. These taxes or fees can vary considerably from province to province. But even then, the fees are just 1.5% on estates exceeding $50,000. However, your Executor will still have to file your final income tax return (and also possibly pay capital gains taxes on some assets). John Peart is a partner with the Ottawa law firm of Nelligan O’Brien Payne LLP and part of its Wills and Estates Group. So be careful about distributing all of the assets of an estate before assessing what tax owing might result. This bit of knowledge can sometimes be a dangerous thing. This field is for validation purposes and should be left unchanged. John is Certified as a Specialist (CS) in Estates and Trusts Law by the Law Society of Upper Canada and is also a member of the International Society of Trust and Estates Practitioners. A common estate planning tool before assessing what tax owing might result tax requirements are part of the deceased s... These changes, announced during the certification process arrange to meet you at address. Even eliminate estate administration process making changes in asset ownership simply to save a dollars. 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