Is Your Legacy Protected With Only A Will?

If You’re Not Sure, You Need A Second Opinion on your estate plan.

You Know That Your Estate Plan Is Important.

We All Want to Protect Our Children.

Consider Adding a Powerful Trust To Take Your Estate Plan To The Next Level.

 

 

Have you been told that a Will and Power of Attorney and a Representation Agreement are all you need for an estate plan in BC?

If so, you should consider a second opinion on your estate plan. Any comprehensive estate plan should give careful consideration of the utilization of a trust, the most powerful tool in BC estate planning.

You may ask, “But doesn’t a Will transfer my assets to my children anyway? Why bother with a trust?”

While a Will does provide a serviceable mechanism to transfer assets to your beneficiaries, there are MANY important advantages to creating a trust.

Wills Equal Probate Fees

Did you know that BC charges probate fees on estates which are probated, including Wills? BC charges a fee of approximately 1.4% just to process the estate. And while 1.4% may sound like a small amount, when the probate fee is applied to even a moderate estate with real estate and investments, the fee can be astronomical. For example, a $1,000,000.00 estate would incur probate fees of approximately $13,650! And, after paying these fees, your family still needs to process all of the probate paperwork and pay lawyer fees. The probate fees are simply a large tax on your estate.

But Is There A Way To Avoid Probate Fees?

Certainly, the Alter Ego Trust or the Joint Spousal Trust provide an effective and powerful method to bequeath your assets without incurring probate fees. You simply transfer your assets into an Alter Ego Trust or the Joint Spousal Trust now and when you pass away, your trustee transfers your assets to your beneficiaries without going through probate or incurring probate fees. Your children get your assets but the province doesn’t get the probate fees!

Did You Know That Wills Can Be Challenged?

Under BC law, beneficiaries can challenge the provisions in your will under the Wills, Estates and Succession Act. Under this law, your children and your spouse can ask the court to change your will after you pass away.  Specifically, the Wills, Estates and Succession Act, provides that:

“Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.” (Wills, Estates and Succession Act, s. 60)

What is adequate, just and equitable in the circumstances? There is no way of knowing with certainty. Under the Wills, Estates and Succession Act the court will decide fro you what it considers adequate, just and equitable in the circumstances for your family after you pass away.  In addition, the Wills, Estates and Succession Act can not only frustrate your estate planning wishes, but it exposes your estate to potentially lengthy and expensive estate litigation. Often, the biggest winners in a wills challenge lawsuit are the lawyers billing huge legal fees against your estate while the lawyers are arguing over what is adequate, just and equitable in the circumstances!

Alter Ego Trusts Avoid Will Challenges!

However, the Wills, Estates and Succession Act only applies to wills and not to trusts. Accordingly, assets in trusts are not subject to the Wills, Estates and Succession Act unless the disinherited spouse or child can set aside the transfer of the assets into the trust.

Avoid Court With A Trust!

Protect Your Privacy 

Wills are publicly administered which means your financial affairs are disclosed publicly. Trusts on the other hand are confidential. By using a trust, you can protect you and your family’s privacy.

Trusts Make Ownership Transitions Easier

If you use a will, then your assets can be tied up while your estate slowly works its way through probate court. This make it very difficult for your beneficiaries to control your assets while probate goes on. Even if you gave your beneficiaries a power of attorney, the power of attorney lapses upon your death. Trusts on the other hand make it much easier to transfer control and ownership of your assets. With a trust, your assets are already held by your trustee for you. This makes the the transition quick and seamless.

Are Trusts Legal and Ethical?

Of course, trusts are a well established legal tool in Canadian law and the use of Alter Ego Trust and the Joint Spousal Trust are both specifically authorized in subsection 248(1) of the Canada Income Tax Act. There is nothing improper in using trusts to avoid fees. This simply smart planning.

Sound To Good To Be True? What’s The Catch?

Unfortunately, not everyone is eligible for a Alter Ego Trust or Joint Spousal Trust. You must be at least 65 years old to create a Alter Ego Trust or Joint Spousal Trust. While you can certainly create a trust if you are under 65 years old, you cannot create an Alter Ego Trust or Joint Spousal Trust which has beneficial tax rules. This is one situation where being 65 years or older is an advantage!

Comprehensive British Columbia Trust and Estate Planning Law is ALL we do!

Trusts

The concept of trusts is very simple. A trust is simply a mechanism where one person, the trustee, holds property for the benefit of another person, the beneficiary. However, this simple relationship can be very powerful tools to manage your finances. A properly drafted trust can be used to transfer your assets to your heirs without paying probate fees, prevent creditors from seizing your assets, minimize taxes and prevent will contests! If a lawyer tells you don’t need a trust, ask yourself if you would like to avoid probate fees, creditors, taxes and will variation litigation. Unfortunately, properly drafting trusts is complex. Most “estate planning” lawyers provide little more service than inserting your names on a simple will which you could download yourself off numerous websites for little or no cost. Any lawyer can type your name on a standard will and print it off. But that is not “estate planning”, that is simple word processing. If you really want to optimize your financial affairs, you need to consider the most power tool in a British Columbia estate planning lawyer’s arsenal: a trust.

What is a Trust? 

A trust is a legal arrangement you make before your death to have someone manage your assets immediately or at your death.  Trusts are like wills in that you outline your wishes for the distribution of your property and care of any dependents before your death. Trusts differ from wills in that once you die, the person you named as the successor trustee takes over managing your property instead of the probate court.  This saves you time and a lot of money in probate fees.

A trust holds your assets for you during you life and it provides rules for the management and distribution of those assets after your death. A trust is managed by a trustee who administers the assets in the trust for the benefit of your beneficiaries. While you are alive and have capacity, you and your spouse will will act as the trustees of your trust. This means that you will control the trust and you will be able to exercise complete control of the trust assets. You can sell the trust assets, buy more trust assets, mortgage the trust assets or do anything else you like with the assets in the trust.

After both you and your spouse pass away, the control of the trust will pass to you successor trust who will then manage the trust on behalf of your beneficiaries and distribute the trust to your heirs. The successor trustee is required to follow the rules set forth in your trust and distribute the trust assets in accordance with your wishes.

Also, should you become incapacitated, your successor trustee would act on your behalf, handling financial issues and even managing property or business assets for you. It’s all clearly spelled out and, unlike a will, can be handled without any involvement by the courts.

Should You Have A Trust?

One big advantage of a trust is that it allows you to avoid probate.  Probate fees can run several thousands of dollars.  A living trust enables you to give the money you would have spent in fees to your loved ones.  Further, a trust lets your beneficiaries avoid the complicated and time-consuming probate court. Another advantage of a trust is that the successor trustee can take control of the trust in the event you become incapacitated and cannot make decisions for yourself.

Safe Harbour Trusts Law 
Trusts & Estate Planning Law Firm
666 Burrard Street #500
Vancouver, BC V6C 3P6
Tel. (604) 639-3191
info@trustslaw.ca

Admitted to Law Society of British Columbia
in 1998, Law Society of BC No. 502571

Admitted to California State Bar in 2000
California State Bar No. 209838

Admitted to Practice in the
U.S. District Court – Central District in 2006

SAFE HARBOUR TRUSTS LAW 
Trusts & Estate Planning Law Firm
666 Burrard Street #500
Vancouver, BC V6C 3P6
Tel. (604) 639-3191
info@trustslaw.ca

Admitted to Law Society of British Columbia
in 1998, Law Society of BC No. 502571

Admitted to California State Bar
Since 2000, Califoria Bar No. 209838

Admitted to Practice in the
U.S. District Court – Central District