Trusts are often looked to in estate and wealth planning because of the potential tax advantages they can afford. Some of these tax advantages, including probate tax and income-splitting opportunities, have been examined in a previous blog post "Sometimes it is about the tax - inter-vivos trusts and spousal loans." as trust assets are not subject to probate upon death of the settlor, they are not subject to probate tax - referred to as Estate Administration Tax in Ontario - which, based on Ontario's current rate of approximately 1.5%, can result in substantial tax.
The advantages of trusts, however, are not limited solely to
relieving tax headaches - trusts can also help with more personal
headaches, such as problematic beneficiaries!
While in a perfect world everyone might aspire to treat their loved
ones equally, unfortunately not every beneficiary is created equal.
Although you may have the freedom to exclude your loved one in your
will, you may feel a sense of moral obligation to keep them in to
mitigate potential hurt feelings and animosity, especially
considering the public nature of a will.
An often overlooked benefit of using an inter vivos trust (i.e. a
trust set up while you are living) is the privacy it affords. A
will, unlike a trust, becomes part of the public record once
submitted to the court upon death, where it is part of the court
file and is available to anyone who may wish to request a copy to
review its contents. A trust is not subject to public scrutiny
making its private nature attractive, in particular for those with
complicated family dynamics.
With a trust, hurt feelings can be better managed and avoided. If
you wish to benefit certain beneficiaries more than others, they
can be included as beneficiaries of a trust set up during your
lifetime. This saves you from having to make the uncomfortable
decision of leaving a loved one less than others, or potentially
out of your will altogether.
Aside from the privacy a trust allows with respect to
beneficiaries, you may also want privacy with respect to your
assets. When a will is submitted for probate, the court requires
disclosure of the value of your estate, which also becomes part of
the public record. Such disclosure is not required for a
trust.
In addition to "snooping" beneficiaries and others, a
trust may protect your assets from litigation after your death. An
angry beneficiary who is unhappy with what they receive may try to
challenge the validity of your will after your death based on lack
of testamentary capacity or undue influence, and hold up the
administration of your estate. Evidence supporting these arguments
is more difficult to prove when a trust has been in place for many
years prior to the death of the settlor.
A trust may also protect beneficiaries from themselves. A
discretionary trust gives the power to the trustees to decide if
and when to make a payment to a beneficiary, and for how much. If a
beneficiary has spendthrift tendencies and overspends or is not
good at managing money, the trustees can stagger payments to the
beneficiary or exclude them from a distribution altogether if there
is fear that the beneficiary will exhaust all the assets they
receive at once.
For those beneficiaries with creditors, a trust can protect their
inheritance by including a clause in the trust instrument that
prevents a beneficiary from transferring their interest in the
trust to a creditor or prevent a distribution to a beneficiary with
creditors altogether. This can extend to potential matrimonial
claims of a beneficiary. A trust may be the best way to protect
your assets by ensuring they are distributed for the benefit of
your loved ones, rather than an outside party owing to questionable
spending habits or potential matrimonial issues of your loved
ones.
Tax planning always plays a critical role in your overall estate
and wealth plan, but in trying to determine the most optimal tax
plan, certain tools are often overlooked or undervalued that can
offer you distinct advantages. Taking the time to look into these
strategies may optimize your planning and ultimately provide you
with peace of mind.
It is important to not let the proverbial tax tail wag the dog.
While the tax advantages - and, sometimes, disadvantages - are an
important consideration in determining whether a trust makes sense
for you, there are a variety of important other factors that make a
trust attractive and beneficial, and that will help you achieve
your overall wishes for your estate plan based on your individual
circumstances.
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.