The taxation of estates, testamentary trusts and certain “life interest trusts” such as alter ego, joint partner and spousal trusts, and the rules for charitable donations made on death through an estate are changing significantly on January 1, 2016. These initiatives flow from previously announced budgets, and will cause changes to previously established estate plans, wills and trusts.

This client update is an attempt to summarize the more significant aspects of the rules. However, there is a great degree of complexity caused by these changes, and it is important for individuals to seek advice specific to their circumstances. The primary aspects of these changes are set out below:

  • Testamentary trusts (trusts that are established in a will and arise as a consequence of death of an individual) will now be taxed at the high marginal tax rates for income retained in the trust (currently testamentary trusts are taxed at the graduated tax rates) – this significantly curtails the opportunities to use testamentary trusts for pure tax planning (although many non-tax estate planning reasons for such trusts remain).
  • One exception to this is the “graduated rate estate” ("GRE") which will continue to obtain the benefit of graduated rates for 36 months after the date of death.
  • Testamentary trusts established for the benefit of a disabled individual (a qualified disability trust) will also continue to obtain graduated rate taxation.
  • Existing testamentary trusts will have a deemed year end on December 31, 2015, and all testamentary trusts (except GREs) will have to have a calendar year end going forward.
  • Only GREs are eligible for certain tax planning provisions related to loss carry backs (which are particularly relevant with private company shares) or utilize the new estate donation rules (including the continued elimination of taxable capital gains on donations of marketable securities to public charities).
  • Life interest trusts will now have a deemed year end at the end of the day of death of the life beneficiary and all income (including realized capital gains on that deemed disposition) will be deemed payable to the life interest beneficiary and taxable by his or her estate – this shifts the tax burden from the life interest trust to the estate of the life interest beneficiary which is a significant change, and particularly problematic for second relationship, blended family and family-controlled business situations. 
  • Strategies do exist to avoid this mismatch, but revisions to existing trusts are required for those to be implemented.
  • A court ordered variation of irrevocable trusts might be required. 
  • The new estate donation rules give greater flexibility for those persons who wish to make charitable donations on death – as long as the donation is made by a GRE within 36 months of the date of death, the charitable tax receipt can be carried back to reduce 100% of taxes in the year of death and the year immediately preceding, or 75% of the taxes in the three years of the estate itself or a five year carry forward in the estate, but the donor must be a GRE.
  • The new donation rules do not apply to gifts by life interest trusts, so the possibility of charitable giving through life interest trusts has been fully eliminated.
  • For more specific information about the new charitable donation rules, please see our separate update “New Tax Rules For Charitable Gifts”.

These rules are extremely significant and affect a great many different estate planning scenarios.