by Michelle Fong
Being
entrusted to be an Executor is an honour – it means that the deceased believes
that you are the best suited person to manage and care for their estate.
However, the position also comes with legal responsibilities and liabilities.
The “job” of an Executor can last from a year or more, with or without
contentious beneficiaries.
The Executor
has many duties. This article focuses the notable deadlines and timelines. The
“Administering the Estate” timeline focuses on the Grant of Probate process (if
there is no Will, it is called a Grant of Administration). The “Tax” timeline
focuses on what needs to be done at what point to alleviate the tax burden of
the estate.
ESTATE
ADMINISTRATION TIMELINE
Broadly
speaking, in administering an estate, the Executor’s role is to gather the
assets of the estate, protect them, ensure debts are paid, then distribute the
assets. It seems simple enough. However, there are certain events and their
timing that should be considered.
1. A Notice to
Claimants may be published in the local newspaper. The Executor is responsible for ensuring debts of the estate are
paid before they distribute the assets to the beneficiaries. This notice
“starts the clock” for any claimants who are owed money from the estate – they
must contact the Executor within 30 days and formalize their claim. After the 30 days, the Executor can move
forward with the estate without worrying about claimants coming out of the
woodwork. The Executor can be held personally liable if they distribute the
estate to beneficiaries before ensuring all debts are paid.
2.
Apply for a
Grant of Probate (or Administration). There is no “deadline” for applying for a Grant of Probate (or
Administration) but certain institutions may refuse to acknowledge an
Executor’s authority until a Grant of Probate is obtained. This may make it
difficult to deal with the estate assets and debts without a Grant of Probate. It takes time to compile the information for
an application for the Grant and, once it is submitted to the Court, it can
take 4-5 months to be processed. This is also assuming that no one contests the
application.
3. Family
Maintenance and Supports claims. After the Grant of Probate is obtained, a family member, as legislatively defined, will have 6
months from the date of the Grant to make a family maintenance and support
claim from the Estate. The basis of the claim is that the deceased failed to
make adequate provision for the proper maintenance and support of the family
member. If the Executor distributes the estate assets prior to this 6-month
deadline (or prior to the matter being settled, if a claim is lodged), then the
Executor will be personally liable to the family member for the estate assets
they are found to be entitled to.
4. Final
Clearance Certificate. The
Executor is responsible for ensuring debts of the estate are paid before
they distribute the assets to the beneficiaries. One major debt of the estate is
tax. After filing the terminal tax return and receiving the Notice of
Assessment, the Executor should pay taxes owed and then apply for a final
Clearance Certificate (if the Estate is designated as a graduated rate estate
(see below), then the final Clearance Certificate is applied for when the
Estate is almost ready to distribute). This Certificate is the CRA’s
confirmation that all taxes have been paid. The Certificate may take 1 to 1.5
years to be issued. If the Executor distributes the estate prematurely, they
will be personally liable for any taxes that are found still owing. It is
recommended to wait until after the receipt of the final Clearance Certificate
before distributing assets to beneficiaries. For more info, see here.
5. Accounting. Accounting is a very important task. The Executor must provide an accounting to
the beneficiaries every two years of their management of the Estate assets. The law requires this accounting to take a
particular form, so it is best to seek advice from experienced counsel. The
Executor can have the accounting approved by the beneficiaries or by the Court.
By seeking this approval, the Executor’s
liability for their management of the Estate assets during the accounting
period is relieved.
6. Executor
compensation. Executor
compensation is a priority claim against the Estate and may be paid in priority
to certain other debts. Unless the Will
expressly provides for the amount of executor compensation, compensation may
not be taken absent beneficiary or Court approval.
7. Distribution to Beneficiaries – Once all of the debts of the Estate have
been paid and the accounting approved, either by the beneficiaries or the Court,
a distribution to the beneficiaries can occur.
TAX
TIMELINES
First and
foremost, the Executor should hire a good accountant. Depending on the
complexity of the estate, a tax lawyer may also need to be brought on. As
mentioned above, taxes are usually owed by the Estate. This is because, for
one, there is a deemed disposition of all capital property upon death (capital
gains taxes incurred) and, second, any income of the deceased in the year of
death will also attract tax (e.g. interest income, employment income, etc.).
Filing
return
Terminal tax
return (Final income tax return)
If the
deceased died on or before October 31st, then the terminal tax
return is due April 30th of the following year. (Or, June 30th
if the deceased was self-employed).
If the
deceased died after October 31st, then the terminal tax return is
due 6 months after the death.
Other tax
returns
Any returns
that the deceased was responsible for, such as corporate tax returns or trust
returns, may become the responsibility of the Executor if there are no other
directors of the corporation, or other trustees of the trust. Be aware that:
· A
corporation’s T2 return filing deadline is 6 months after its tax year-end (but
corporate taxes may be due 2 or 3 months after tax year-end).
· A trust’s T3
return filing deadline is 3 months after its tax year-end. Taxes are due at the
same time.
Elective returns
In addition to the regular terminal tax return filed for the
deceased, other optional returns can be filed. The benefits of filing multiple
returns is, generally, certain tax credits can be claimed on each return
(duplicating tax credits) and the income in each return will be subject to
graduated rates (duplicating the lower tax rates).
1. Rights or
things return. Rights or
things relate to income that the deceased was entitled to but had not yet been
paid. For example, declared but unpaid dividends, or work in progress amounts.
This return is due 1 year after death or 90 days after the Notice of Assessment
for the terminal return, whichever is later.
2.
Income
return from proprietor (business) or partner. If the
deceased died after the end of the business's fiscal period but before the calendar
year-end (in which the fiscal period ended), you can file an optional return
for the deceased. This return is due at the same time as the terminal tax
return.
3. Graduated
Rate Estate (GRE) return. Discussed
below. To be treated as a GRE, the Executor must designate the estate to be a
GRE in a T3 trust return. The first GRE return is due at the same time as the
terminal tax return. Subsequent returns are due in accordance with the T3
deadlines (3 months after tax year-end).
For more
information on optional returns, see the CRA site here.
Graduated
Rate Estate
An estate is
considered a trust for tax purposes. Subject to certain exceptions, trusts are
taxed at the highest marginal rate. However, a GRE allows the estate to be
taxed at graduated rates instead and they have more flexible donation rules. Also,
in order to avail the estate to certain tax elections and options, the shares
of private corporation must be held by a GRE (discussed below).
An estate must be designated as a GRE. In order to qualify as a
GRE, the following criteria must be satisfied during the entire duration of the
GRE:
i.
the estate
arose on and as a consequence of the individual’s death no more than 36 months
after the death;
ii.
the estate
is at that time a testamentary trust;
iii.
the
deceased’s Social Insurance Number is provided in the estate’s Trust Return for
each taxation year of the estate during the 36-month period after the death of
the deceased;
iv.
the estate
designates itself as GRE of the individual in its Trust Return (GRE Return) for
tax year of death; and
v.
no other
estate designates itself as the GRE of the deceased.
A GRE, and
its preferential tax treatment, will only last up to 36 months from death. It
can be terminated earlier if it distributes all assets, or if the estate no
longer satisfies all the above requirements.
Corporations:
Options to avoid double taxation
If the
deceased owned shares in a private corporation at death, then there may be
double taxation (tax at the deemed disposition at death, and tax upon extracting
the funds from the corporation to pay the beneficiaries). There are certain
strategies to avoid this double taxation.
The two most common are:
1. Loss
Carryback 164 Election. The deemed
disposition at death will increase the adjusted cost base of the shares to fair
market value. The Estate (GRE) then redeems the shares in the corporation,
creating a deemed dividend and a capital loss. This capital loss is then
carried back to net against the capital gain at death. The 164 election to
carryback the capital loss must be included on the terminal return, meaning this
option must be completed within 1 year after death.
2. Pipeline
(post-mortem). A pipeline
requires a new corporation to be created (NewCo) in addition to the private
corporation already owned by the deceased (PrivCo). The NewCo will acquire the
shares of the PrivCo from the Estate (GRE) in exchange for a promissory note or
preferred shares. Later on, NewCo will then use the assets originally in PrivCo
to pay off the promissory note. The is
no “deadline” for this transaction but there is a timeline. The NewCo and
PrivCo must exist for at least 1 year (we recommend longer, such as 3 years). The
assets should not be distributed to the beneficiaries until after the 1-3-year
period. Therefore, it is better to start this process sooner than later.
Both options
are complex and carry risks and benefits. The above explanations are very
generalized overviews. The risk of double taxation, and the complexity
associated with avoiding it, means a tax practitioner should always be
consulted as soon as possible if an estate includes shares of a private
corporation.
Rollovers:
Spouse and Farm or Fishing Property
Upon death,
the deceased is deemed to have disposed all his or her capital property at fair
market value. This will often trigger tax for capital gains and recapture (if depreciable
property).
However,
there are two main exceptions where the property is deemed to be transferred at
cost instead:
· Rollover to a spouse, common-law partner, or
qualified spousal trust. To qualify
for this rollover, the property must vest indefeasibly in the spouse,
common-law partner or trust within 36 months after death. The “default” rule is
that the transfer will occur at cost if it qualifies (no election required) but
the Executor may elect out of this default rule and the transfer will
then occur at fair market value.
· Rollover of
farm or fishing property from parent to child. To qualify for this rollover, the property must be qualified farm
and fishing property, the recipient child must be a Canadian
resident immediately before the deceased died, the property must have
transferred to the child as a consequence of the deceased’s death, and the
property must vest indefeasibly in the child within 36-months after death. The
“default” rule is that the transfer will occur at cost (no election required) but
the Executor may elect to have the transfer occur at any value between
cost and fair market value.
In both
exceptions, it is possible for the Executor to elect for the transfer to occur not
at cost. This is usually done to trigger capital gains tax which can then
be offset with the deceased’s lifetime capital gains exemption. For the capital
gains exemption to apply, the property must be eligible property and the
deceased must still have a capital gains exemption balance at death.,
CONCLUSION
Acting as
Executor can be time-consuming, onerous and complicated. This article aims to highlight
the deadlines that must be met and to demonstrate that administering an Estate
can take a long time, even for the most organized. Therefore, it is generally
better to start earlier than later.
The McLennan
Ross Wills & Estates Group and Tax Group would be happy to assist you in dealing with
your Executor’s duties as well as the various tax issues that may apply to the
estate. Please contact our office.