Addressing Equity in Estate Taxes and Property Distribution (Issues & Solutions)

Estate planning ensures your estate assets are distributed according to your wishes. However, in Canada, several issues and disputes arise regarding estate taxes and property distribution, which leads to challenges for heirs and beneficiaries.

You surely want fairness in your estate taxes and property distribution. So, it’s important to narrow down the common issues to come up with effective solutions to ensure a fair and equitable process. 

While seeking legal services from ‘property lawyers near me’ in British Columbia is beneficial, you need to have some ideas in navigating these challanges in the law society for your peace of mind.

Estate Tax in Canada

In Canada, there isn’t a direct inheritance tax, but there is a form of the estate tax. After the testator dies, the Canada Revenue Agency (CRA) ensures that any taxes on the income earned up to the date of death are paid. If taxes are owed, the estate’s executor must file a final tax return for the deceased.

For example:

If the testator dies on June 30, 2020, the taxes must be paid up to December 31, 2019. But if the testator didn’t pay taxes on income earned from January 1 to June 30, 2020, because the filing deadline is April 2021, the estate’s executor must file a final tax return before the 2020 deadline to report all his income. If taxes are owed, the executor must pay them from the testator’s estate. If it is due a refund, the CRA will issue a cheque to the testator’s estate.

Common Issues in Estate Taxes and Property Distribution + Solutions

Significant Tax Burden

One of the primary issues in estate planning is the significant tax burden that can fall on the beneficiaries. The estate (i.e., real estate, cash, mortgages) itself can be subjected to substantial taxes before distribution. These include capital gains tax on any appreciated assets, which can seriously reduce the value of the inheritance.

Solution: Strategic Tax Planning

To reduce the tax burden, it is essential to engage in strategic tax planning. Consulting with professional real estate lawyers and tax advisors can help in structuring the estate in a tax-efficient way. You may consider the following:

Account Tools Clients can use tools like TFSA (tax-free savings account) and RRSP (registered retirement savings plan) to minimize the taxable portion of the estate.
Establishing Trusts  According to a report from BDC Canada, Establishing trusts is an effective strategy for reducing taxable estate and providing for beneficiaries over time.

Unequal Estate Distribution

Another common issue is the unequal distribution of assets, which can lead to disputes among heirs. This occurs when there is a failure to plan adequately or when the will does not clearly outline the distribution process.

Solution: Clear and Detailed Wills

To ensure fair and equitable distribution (including a real estate property), draft a clear and detailed will. A real estate lawyer can aid in this process so all legal requirements are met, and the will reflects the testator’s wishes.

  • Involving a law firm with experience in real estate law and estate planning can provide peace of mind that all assets, including commercial real estate and residential real estate, are distributed fairly.
  • Update the will to reflect changes in assets and relationships. This prevents disputes and ensures that the distribution remains equitable.

Failure to Plan for Taxes

Failure to plan for taxes can result in a substantial portion of the estate being used to pay off tax liabilities, which leaves less for the beneficiaries. This is a common oversight that you can avoid with proper planning.

Solution: Early and Ongoing Tax Planning

Engaging with a real estate lawyer Surrey, BC, can provide guidance on how to minimize your tax liabilities. You may also consider the following:

  • Gifting assets to reduce the size of the estate and the tax burden.
  • Making use of property transfer tax exemptions where applicable

Business Ownership (Family-Owned Businesses)

Suppose the testator is a business owner. It can also present unique challenges in estate planning. Every real estate lawyer would agree that the transfer of ownership can be complex, especially if not all family members are involved in the business. Valuing the business and planning for potential taxes also adds to the complexity.

Solution: Succession Planning and Valuation

Succession planning is essential for family-owned commercial businesses. This course of action involves the following:

Identifying a Successor Whether a family member or an external party to whom you can transfer the ownership.
Drafting Important Documents A reliable property lawyer can assist you in drafting the necessary paperwork to ensure that the transition complies with commercial real estate law.
Business Valuation Helps understand the tax implications and planning. Opt for legal services and consult with a property lawyer who has sufficient knowledge of business valuations to ensure the process is thorough and accurate.

Liquidity Issues

Liquidity issues arise when the estate lacks sufficient liquid assets (or cash) to meet its financial obligations, such as paying taxes or debts. This can force the sale of valuable assets, including real estate, often at a lower price than their market value.

Solution: Creating Liquidity

To address liquidity issues, you must ensure that your estate has enough liquid assets.

  • Life insurance policies provide a lump sum payment that you can use to cover taxes and other expenses.
  • Setting aside cash or easily liquidated investments can prevent selling off assets.
  • Engaging with private lenders or securing loans can also be an option in some cases.

A wills and estates lawyer can advise on the best ways to maintain liquidity without compromising the value of your estate.

The Role of Property Lawyers

A property lawyer helps navigate the complexities of estate planning. There are real estate law services, providing a full range of legal services, from drafting wills and trusts to managing commercial real estate transactions and handling disputes. Beyond that, you can expect:

Knowledge in Real Estate Transactions

Real estate transactions involve major legal considerations. Lawyers ensure that all real estate law services are complied with to protect the interests of your estate and the beneficiaries. They can handle everything from the purchase contract to the sale of property to commercial leasing and real estate litigation.

Dealing with the Strata Property Act

In British Columbia, the strata council governs the management of strata properties. A real estate lawyer Surrey with experience in this area can assist you in ensuring compliance and resolving any issues that arise within your strata properties. If you’re living in urban areas like Surrey, BC, New Westminster, and the Lower Mainland, strata properties are common.

Assisting with Property Transfer Tax

The property transfer tax can be challenging and time-consuming. So, you can let lawyers assist you in understanding exemptions to ensure that the necessary paperwork is filed correctly. This can prevent unnecessary tax liabilities and ensure a smooth transfer of commercial or residential property.

Ensure Fairness with Dependable Property Lawyers

Addressing equity in estate taxes and property distribution requires careful planning and the knowledge of property lawyers. Strategic tax planning, drafting clear and detailed wills, planning for business succession, and ensuring liquidity can prevent issues that may arise in planning your estate.

If clients seeking assistance, opt for a law firm that offers free consultation to discuss your estate planning needs. You can also talk to a real estate lawyer in Surrey or the Greater Vancouver Area to provide you with the necessary advice to navigate this complex process.

The right legal support is essential for equitable estate planning in Canada, whether dealing with real estate law, the Strata Property Act, commercial transactions, or simply ensuring that the whole process is handled smoothly. Visit NG Sidhu today to address your concerns. 


Frequently Asked Questions

How do probate fees work?

These legal fees vary by province and can be complex. Some assets can bypass probate to reduce costs. For example, assets with a designated beneficiary, like life insurance policies or registered investments such as RRSPs and TFSAs, usually avoid probate. Also, joint assets, often with a surviving spouse, are excluded from probate as the joint owner assumes full ownership.

How capital gains on investments are treated?

When the testator dies, his non-registered investments are treated as if they were sold on the date of death. Any income from these investments must be reported on the deceased’s final tax return. According to an article from TD Bank Canada, half of the capital gains are taxable and added to the estate’s income.

What are the new reporting requirements for trusts?

According to the T3 Trust Guide from the Canada Revenue Agency, all trusts, unless they meet certain conditions, are required to file a trust return and Schedule 15 for tax years ending after December 30, 2023. However, for bare trusts, the CRA has waived this requirement for the 2023 tax year and is currently working to clarify the reporting requirements for 2024 and beyond.

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