A trust is a vehicle for holding and passing on the family property. As such, it typically serves at least one of two purposes: It can reduce a family’s taxes by shifting income to members in lower tax brackets, and it can provide for less fortunate (or more impulsive) members by controlling how their money is disbursed.
The laws surrounding trusts differ from one country to the next. Just because there may be certain rules about trusts in the United States doesn't mean those rules apply to trusts in Canada. This article looks at some of the basics of establishing trusts in Canada and how they're maintained in that country.
- Trust laws tend to vary by country.
- Estate freezes can make trusts indispensable for even modestly successful family businesses.
- There are two types of trusts in Canada: Testamentary trusts are created as part of a will and take effect after the testator dies, while an inter-vivos trust, is established while its architect is still alive.
- Though a Canadian trust is not a legal entity, it is considered a taxpayer at the highest rates under Canadian law.
What Is a Trust?
A trust is nothing more than a relationship. It occurs when one person, often called the settlor, gives property to another person—the trustee—to manage on behalf of still other people. These people are known as beneficiaries. Using the estate freeze, for instance, owners of a growing company convert their shares of the existing business into preferred stock calibrated to the value of the business and sell new common stock to the family trust that captures the company’s future growth.
Depending on the type set up, a trust is not a legal entity that can enter into contracts or incur liability. As such, trusts are not particularly difficult to establish. In fact, technically speaking, most trusts don’t even require a founding document. But the tax law surrounding trusts is just as complex as one might expect. An individual interested in setting up a trust should talk to a lawyer first.
How Canadian Trusts Are Different
Because of the dividend tax credit and personal tax credit, a Canadian without any other income—especially a student with deductible education expenses—could receive tens of thousands of dollars in dividends from Canadian companies tax-free. But while the family trust has a well-earned reputation as a tool for the wealthy, these benefits can reach deep into the middle class. For example, a special rule known as an estate freeze can make a trust indispensable for even modestly successful family businesses. An estate freeze is one type of strategy whereby the owner of an estate transfers assets to their beneficiaries without incurring any tax consequences.
By locking in the current generation’s stake at the company’s current value, they can prepare for the tax liability when they die without worrying about having to sell the company. Meanwhile, the next generation can share in the company’s profits through dividends allocated to the common shares.
Living or Estate Trust?
There are fundamentally two kinds of trusts. Testamentary trusts are created as part of a will and take effect upon the death of the testator. Changes to Canadian law took away the tax advantage of setting up long-term testamentary estate trusts, making them less useful.
Any other trust, including one using an estate freeze, is a living, or inter-vivos, trust, established while its architect is still alive. A living trust can be established for a variety of purposes—the Canada Revenue Agency (CRA) has identified 33 different types of living trusts—for a variety of different beneficiaries. Some of these include:
- Alter Ego Trust: This trust allows the settlor, aged 65 or older, to receive all the income during their lifetime. This person is also the only one who can receive income or capital of the trust during the settlor's lifetime.
- Employee Trust: Employers in this type of trust make payments to a trustee. These are made for the benefit of their employees. Any business income acquired cannot be distributed and is taxed.
- Master Trust: Among the rules involving this trust, it must never have taken any deposits, has been a resident of Canada, and can only have invested its funds.
- Real Estate Investment Trust (REIT): Some of the conditions in this trust include at least 90% of the trust's portfolio must include qualified REIT properties. In addition, at least 90% of the income generated must come from rent—among others.
Special rules allow an individual aged 65 or older to roll over assets into these trusts without having to pay capital gains on the assets first. Only the individual—and the partner, in the case of a joint trust—can benefit from the trust while he or she is alive. When the settlor or surviving partner dies, the trust pays tax on realized capital gains, but the property in the trust can be distributed to heirs without being subject to probate fees.
Only the individual can benefit from the trust while he or she is alive.
Mind the Attribution Rules
Though a Canadian trust is not a legal entity, it is considered a taxpayer at the highest rates under Canadian law. That is why trustees try to pass on any income earned by trust property to beneficiaries, so they can pay the taxes at their own, presumably lower, rates. But in an effort to limit using trusts for tax avoidance, Canadian tax law attributes trust income to the person who transferred the property to the trust if the recipients are close relatives.
In general, these attribution rules apply when the beneficiary is either a spouse or under the age of 18, in the case of dividend and interest income, but not capital gains. The attribution rules do not apply when the beneficiary is an adult child, grandchild, niece, or nephew.
Other rules attribute the income to a transferor who can effectively control, or reclaim, the assets in the trust. There are exceptions including alter-ego trusts and joint partner trusts. But otherwise, the rules make revocable trusts increasingly common in the U.S., while difficult to use in Canada.
Choose a Settlor and Trustee
The attribution rules guide these decisions. Since a transferor can’t control the property in a trust, she can’t be a sole trustee. The person who is transferring the property that is to be put into trust usually asks someone else to be the settlor. This may be a grandparent, perhaps, or close family friend.
There are times, however, when you must appoint someone else as a trustee such as a trust company. For example, if you want to establish a trust in another province, the trustee—or the majority if there are multiple trustees—must reside there. In other instances, you can appoint an outside trustee when you want pure independence or anticipate conflict within the family.
Decide on What Property to Transfer
A trust does not exist without some property being transferred, or as it’s called, settled. The prospect or promise of making the transfer is not enough to create a trust in advance. Moreover, given the attribution rules, it may be unwise to settle a trust with the actual property that will provide income or capital to the beneficiaries, though the settling property should have some value.
If a trust’s beneficiaries would otherwise trigger the attribution rules, the settlor or the individual with the real assets can avoid them by making what’s known as a prescribed interest rate loan, a documented loan with an interest rate no lower than the CRA prescribed interest rate.
The trust can then use the proceeds of the loan to purchase the assets it will hold. For example, in the case of an estate freeze, a small loan of, say, $100, ought to be enough for the trust to buy the family company’s new common shares at a nominal par value. The trust can repay the loan when it receives the first dividend check.