Effective on January 1, 2016, there will be significant changes
to the manner in which trusts created under a will are subject to
income tax. As there are no grandparenting provisions these changes
will also affect current wills, trusts and estates.
Two substantial changes to trust and estate taxation are:
The introduction of Graduated Rate Estates ("GREs");
The shift of the tax burden for Spousal/Common-Law Partner
trusts, Joint Spousal/Common-Law Partner Trusts, and Alter-Ego
Trusts ("Spousal Trusts").
GREs and Graduated Rates
Currently, any trust that arises as a consequence of death
("Testamentary Trust") is taxed at graduated rates
indefinitely. This has led to potential savings of over $10,000 per
year per Testamentary Trust. While Testamentary Trusts have been
used extensively for estate planning, starting in 2016 only
qualified disability trusts and GREs will be taxed at graduated
rates. All other trusts, including Testamentary Trusts, will have
all of their income taxed at the top marginal rate (currently 39%
Unlike Testamentary Trusts, there may only be one GRE per
deceased, lasting for 36 months after the deceased's death. A
GRE must also designate itself as a GRE in order to take advantage
of the benefits available to them. GREs are also the only trusts
which may carryback losses and transfer donation receipts to a
deceased's previous tax years.
Shift of Tax Burden for Spousal Trusts
Spousal Trusts have a deemed disposition of their assets at the
death of the surviving spouse. Currently, the trust bears the tax
burden for the income of that deemed disposition.
To the alarm of tax practitioners, starting in 2016, in the year
the surviving spouse dies, the Deceased must include all the
taxable income, including the income from the deemed disposition of
the Spousal Trust, in the Deceased's final tax return.
This occurs even if neither the Deceased nor the Deceased's
estate will ever receive that income. As a result, while the trust
may have the income, the Deceased's estate will bear the tax
burden associated with that income. This potential mismatch between
the tax burden and the income will be especially problematic if the
beneficiaries of the Deceased's estate and the remainder of the
trust are not the same, as is often the case.
The Spousal Trust is jointly and severally liable for the
additional tax payable by the Deceased as a result of the inclusion
of the Spousal Trust's income. The government has indicated
that the Canada Revenue Agency will first look to the Spousal Trust
for the owed taxes, although it may not be obligated to do so. This
does not change the fact that the ultimate burden rests with the
Deceased, and it raises the possibility that the Spousal Trust may
have a civil claim against the Deceased for those same taxes.
In conclusion, as a result of these changes:
Estate plans using Testamentary Trusts will not have the tax
advantages they previously had, potentially leading to
substantially worse tax outcomes than those of a plan designed
taking the new legislation into account.
For estate plans that include Spousal Trusts, it would be
substantially preferable to avoid the potential tangle caused by
this shift of the tax burden from the Spousal Trust to the Deceased
by drafting wills/trust deeds to take into account this new
Anyone with an estate plan which creates a Testamentary or
Spousal Trust should seriously consider having their estate plan
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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