Tax issues when Canadians have U.S. executors

Tips to avoid cross-border complications

A common and problematic occurrence in cross-border families is for a Canadian to select a close relative in the U.S. as an executor. Clients considering this option should weigh the potential consequences.

To illustrate the problems, let’s use an example. Fictional couple Noah and Shayna live in Edmonton but their son, Ari, lives in Cleveland. They are currently writing their wills and, as is standard, they select the surviving spouse as executor. At the death of the second spouse, they want Ari to be the executor. That can cause problems on both sides of the border.

Canadian tax problems with non-resident executors

An executor living outside of Canada can cause the estate to depart Canada for tax purposes, making estate administration more complex.

For Canadian tax purposes, an estate is classified as a trust; therefore, the same rules that determine the residency of a trust apply to an estate. This means that the factual residency of an estate is determined based on where the estate is managed or controlled.

With Ari as executor, the estate might become a non-resident of Canada, presenting the following problems:

  • Withholding tax would apply on income earned by the estate.
  • If the estate owns real property that it would like to sell, then the buyer may be obligated to withhold funds on the sale. The withholding is generally 25%.
  • The departure of the estate from Canada might trigger more tax and make it more difficult to wind up corporations.

To put it simply, a non-resident estate makes administration of the estate more complicated and may increase the overall tax burden.

The risk of paying U.S. taxes

If Ari manages the estate from the U.S., there is a risk that not only would it be considered foreign from a Canadian tax perspective, but it might also have to file and pay U.S. taxes.

There are no clear-cut rules to determine when an estate is a U.S. resident and has to file U.S. taxes. In fact, there is frustratingly little guidance on this. The Internal Revenue Code does not define a foreign estate. It merely provides that a foreign estate is not subject to U.S. tax unless it has U.S.-source income or income from a U.S. trade or business.

To establish whether the estate is foreign or a resident of the U.S., we must refer to old U.S. case law, which demonstrates that the IRS and the courts have focused on the location of trust corpus, the nationality and residency of the trustee, and the location of the trust administration as the relevant factors to determine the trust or estate’s residency. The residency of the beneficiaries and the grantor of the trust does not factor into the determination of residency for U.S. tax purposes. No single factor is determinative; however, in later rulings, the principal focus has been placed on the location of the trustee and the situs of trustee administration.

In the example above with Ari as the executor, there is a risk that the IRS would consider the estate a U.S. taxpayer. That would mean the estate has to file a Form 1041 and report its worldwide income to the IRS.

Solutions

With proper planning and advice, these problems can be avoided. The easiest method is for Noah and Shayna to name a Canadian resident as executor instead of Ari. If that is not possible, Ari should commit to managing the estate from Canada and document this so that the estate does not leave Canada, thereby minimizing the risk that the estate becomes a U.S. tax resident.

Max Reed, LLB, BCL, is a cross-border tax lawyer at SKL Tax in Vancouver. max@skltax.com

Canadians concerned about aging parents becoming financial burdens

Survey respondents worried about postponing retirement, being unable to pay off debt

Many Canadians are worried about the financial strain of supporting their elderly parents, according to a survey commissioned by FP Canada and Chartwell Retirement Residences.

The survey, conducted by Leger, polled more than 1,500 Canadians. Fourteen percent of respondents who had a living parent said they expect to postpone their retirement to financially care for them. Twelve percent said supporting their parents would prevent them from paying off debt. In contrast, only 5% and 8%, respectively, confirmed that financially being there for their parents has resulted in those scenarios.

Still, 13% of respondents said they have taken time off work to care for their parents, and 5% said they have had to quit their jobs. A press release notes that women were more likely than men to have taken time off work (15%, compared to 10%).

Canadians aged 18 to 34 are the most concerned about the financial implications of caring for elderly parents, with 18% expecting to postpone their retirement, the release adds.

The survey also found that many Canadians are unaware of various forms of financial assistance available to them to help them care for aging parents.

Only 28% said they’re familiar with tax credits associated with dependent parents—the press release says men were more likely than women to be aware of these credits (31%, compared to 24%). Only 22% of all respondents knew about grants, loans and rebates that are associated with renovating homes to accommodate elderly parents.

Read the full survey here.

Discuss final expenses before it’s too late

If clients plan for final expenses, it’ll make things easier on their children.

When she reflects on a messy estate battle involving one of her clients, one Alberta lawyer says the family fight became so petty, that there was almost a sense of gallows humour about the situation.

The conflict began over the will, and ultimately resulted in decisions about the late client’s funeral being made hastily.

After the service, one relative went so far as to gripe about the way the deceased’s face had been made up. A gruesome thought, perhaps, but she says these types of showdowns offer a takeaway for people currently working on their estate plans: don’t foist funeral arrangements, and the expenses that accompany them, on your children and executors. “In this case,” she says, “some funeral instructions would really have been helpful.”

Many clients, especially younger ones, can be resistant to discussing some of the most basic tools of estate planning—life insurance policies, wills, personal directives and powers of attorney.

But it’s even harder to get people to talk about final expenses, even in situations where family members have agreed to come together to discuss the details of inheritances. “The burial question, cremation, and whether you want a headstone, what kind of funeral service you want—the first time it’s raised, it’s like throwing ice water into the conversation. It freezes; it stops,” the lawyer says.

But at some point it has to be discussed. And the majority of people actually do have a good sense for what they want. If you probe, she says, people will eventually offer the detailed instructions their heirs will need.

Warning

Many clients can be resistent to discussing final expenses.

Broaching the subject

“It’s always difficult to broach the topic of death with clients,” says Maureen Glenn, manager of tax and estate planning for Richardson GMP in Toronto.

To counter that unease, she asks clients to think about recent funerals they attended for family members or friends.

The majority of people are initially uncomfortable with any kind of discussion about their own funerals. Younger people, in particular, still think they’re going to live forever and avoid the subject. You can remind them an accidental death can occur at any time, but don’t expect too much uptake.

Not surprisingly, the conversation is easier with older and more financially secure clients. People in their late 40s and early 50s are more accepting of the fact that no one gets out of here alive. For this group, the subject can be broached during routine will reviews.

And while they’re unlikely to want to get into too much detail, an advisor can re-orient the client’s thinking by confronting them about the consequences to their heirs if they fail to plan.

By encouraging her clients to mentally itemize the components of those services, Glenn creates a new frame of reference and uses it to ease into a more personal discussion. This includes questions about the choice of service, the mode of interment (cremation or burial) and cultural considerations.

Those conversations also allow Glenn to go into detail about the emotional burden family members encounter if they have to make decisions after someone dies. Leaving them to guess is a burden, she notes, and it really is better for them if they have input from the person whose affairs they’re responsible for settling.

Payment options

Next, get clients to focus on the range of final expense options now available in the marketplace.

Pre-paid funerals are among the most common choices, and advisors say clients should expect to spend between $10,000 and $20,000—although the ultimate price will vary, depending on details like the size of the reception and cost of the cemetery plot.

“There’s a very strong sense of satisfaction [among clients when they pre-pay],” says Dan Burjoski, a Kitchener, Ont.-based insurance consultant with HollisWealth Insurance Agency. “[They say], ‘That’s done. I can check it off the list.’ ”

But clients still need to focus on the details of those pre-paid funerals. With providers asking for 25% to 50% of the cost up front, and most cemeteries demanding full payment prior to the service, the pre-pay option can cause cash-flow issues.

For example, some funeral homes, like Jennett Chapel in Barrie, Ont., offer plans that absorb inflation-driven price increases by investing the payments (which are often rendered years before the client dies) and using the asset growth as an offset.

Meanwhile, Elaine Wilson, a lawyer and TEP with Fiduciary Trust Company of Canada in Toronto, encourages clients to get price lists from funeral homes to help generate a more precise estimate of the costs of various elements, such as the casket, service and reception.

Lower-priced options may be available, even if they’re not on display. (Again, inflation will change these prices over time, but it’s easier to estimate the financial requirements by starting with a budget based on specific outlays.)

It is important, however, to remind clients the pre-paid solution is not entirely risk-free.

These types of deals can tie a client to a particular funeral home, so Wilson advises they find out if the funeral home is an independent business or part of a chain. Firms with franchises around the country often provide transfer clauses, which can be useful.

That’s because, as Burjorski notes, people’s circumstances may change. Hopefully, many years elapse between the purchase of a funeral plan and a client’s death. During that period the client may re-marry, move out of province, or even leave the country.

And, if a person’s certain he wants to be buried in a specific place, many pre-paid plans offer the option to buy additional protection covering unexpected travel costs if the person dies overseas, or within the country but far from home.

Insurance can provide more options

To make things more flexible, some advisors recommend clients use insurance policies to cover funeral costs.

While final-expenses policies exist—typically available to healthy people under 85, and covering up to $20,000 in expenses—some advisors say their clients prefer general whole life policies, since it can be cheaper to bump up a $500,000 whole life policy by $15,000 than to establish a whole new insurance plan.

Doing this sets the coverage at a level sufficient to cover the funeral costs, as well as other obligations, such as taxes and outstanding debts. Since whole-life policies typically offer hundreds of thousands of dollars in coverage, final expenses represents a small fraction of the outlay.

The important thing, though, is to make sure this funeral-funding scheme is outlined in an addendum to the will or some other document that’s passed to family members and executors. When people are grieving, it’s important to ensure they’re not worried about the source of funds for something as expensive as a funeral.

Another potential option is term insurance. It’s not an advisable solution for most clients because it gets expensive once a person is older than 60 or winds up with a rated premium after a health issue is discovered.

“We want to make sure the insurance coverage doesn’t expire before you do,” says Glenn.

Term can, however, be a good option for younger, healthy people who want to ensure their spouses or partners aren’t battered by funeral costs should they die unexpectedly.

Regardless of type, a key advantage for insurance products is that policies typically pay out within a week of death. So the cash to cover those costs will be readily accessible, and not subject to the probate process.

And there are other options beyond insurance. Burjoski notes some clients establish joint bank accounts with their adult children, and make it understood the funds in the accounts have been earmarked for funeral expenses.

While these funds do count as an inheritance, they are immediately liquid since the child is a named account holder. Again, an addendum to the will or other document encouraging the heir to spend the cash only for the funeral will be useful.

Without that reminder, the heir may use some of the funds to for other purposes—such as paying estate bills during the period prior to probate, when there’s no access to the deceased’s primary bank accounts.

Segmented funds, which are creditor protected and controlled by parents, are another way of rapidly accessing cash outside the probate process.

And, finally, you can always borrow if you have to. Banks are accommodating when it comes to quickly advancing funds to funeral homes to cover expenses.

The issue of organ donation

While funeral costs and arrangements can be difficult topics for grieving relatives to deal with, there’s an even more challenging issue that comes up when a client dies: organ donation.

Even if the person indicated during his lifetime that he’d like to donate organs after death, his family may not be able to come to a decision when he’s critically ill.

When discussing funeral plans, one estate lawyer in Alberta says she also gets clients to focus on personal directives that contain explicit instructions on end-of-life care and organ donation. She adds the most detailed instructions—which generally emerge only after difficult and awkward conversations—will deliver the least contentious aftermath.

John Lorinc is a Toronto-based financial writer.

How to handle rental properties in estates

Executors must balance responsibilities to tenants and beneficiaries

Rental properties can be significant assets in estates, but they also present a challenge for executors. What obligations and responsibilities does an executor have to tenants, and how should those be balanced with responsibilities to beneficiaries?

Connie den Hollander, partner at Knott den Hollander in Saskatoon, Sask., says rental properties make estates more complex.

“It’s not like most other assets that you just take control of and decide whether to distribute to a beneficiary or sell in some way,” she says. “The decisions you make have to be governed under the umbrella of the residential tenancy legislation.”

By law, the terms of a lease still apply after an owner dies; tenants have a right to continue their tenancy. “If you have tenants, the executor steps into the shoes of the landlord,” den Hollander says, and must assume the landlord’s rights and obligations.

Those obligations can conflict with the executor’s duty to maximize value for beneficiaries. An executor may wish to renovate a property to make it more sellable, she notes, but that can’t interfere with “the tenant’s quiet enjoyment of the premise. You can’t just kick out a tenant and say, ‘We need you to leave so we can clean things up.’”

Ryan Scorgie, partner at Forward Law LLP in Kamloops, B.C., says executors need to thoroughly review tenants’ rights before making decisions about rental property. That’s especially important in tenant-friendly jurisdictions such as B.C.

“All of those rules fall on the executor,” he says. “And if there are any issues, it’s the executor who has to sort those out and be responsible for solving them.”

Such rules are particularly relevant when giving tenants appropriate notice of an eviction arising from a property sale. Even if the executor determines that liquidating a rented property makes most sense for the estate, they can’t simply evict a tenant to sell without giving appropriate legal notice. In B.C. that’s two months, plus one month of rent as compensation. It’s two months’ notice in Ontario and Saskatchewan, as well.

Failure to respect the rules could expose the estate to financial penalty. “Normally the estate overall will be the ‘person’ who’s liable,” Scorgie says. “But if there are actions that the executor should have taken but didn’t, they can be found responsible for that.”

Tyler Hortie, partner at Cohen Highley LLP in Kitchener, Ont., says it may not make sense for the executor to sell a rental property right away.

“Before you start terminating tenancies and getting the place ready for sale, canvassing the beneficiaries and understanding their interests is a really good idea,” he says.

A beneficiary who would rather receive the rental property in kind can save the executor considerable hassle, and potentially save the estate money. Receiving rental property as an inheritance is a cost-effective way to get into the rental market, he says.

The beneficiary must weigh this against the carrying costs of owning a rental property, the taxation of rental income and the eventual taxation of capital gains on a property that is likely not the beneficiary’s principal residence.

Even if the beneficiary decides to sell, it may not be necessary to rush the process.

“If you know it’s going to take you a year and a half to get the final clearance certificate from the CRA, and you’ve got three or four months left on the lease, and if you’re cash-flow positive or you’re net break-even, I think the better option is to wait until you have a full market to sell to—both investors and those who purchase for their own use—as opposed to taking it to market tenanted,” he says.

Taking on the role of landlord can mean extra work for the executor, but outsourcing the job to a property manager is a legitimate expense, Hortie says.

“The executor can download a lot of responsibility for the day-to-day to a property manager, and then simply be worried about the money coming in and the expenses going out,” he says.

More than one-third of mass market households don’t receive financial advice

A new poll reveals why that’s a problem

As the industry continues to examine whether an advice gap exists in Canada among mass market households, a new poll finds that a significant proportion of middle-income households aren’t working with financial advisors, with negative results.

A poll conducted for Primerica found that more than one-third (37%) of middle-income Canadians don’t have access to a financial professional they feel comfortable with. (The poll defines middle income as having a household income between $20,000 and $100,000.)

No insight is offered, however, on why the lack of access exists. (Trust isn’t the issue: in line with other research, the poll revealed overwhelming trust in the information provided by financial professionals.)

What is clear is that the lack of access to professional advice is a problem. The poll found that 61% have made at least one costly financial decision, with an average loss of $29,000. Also, about half (47%) fear they aren’t saving enough for retirement.

Most of those surveyed who haven’t seen a financial professional believe they would benefit from seeing one (75%), and they’re likely right. The poll found that client outcomes are better for those who receive financial advice.

For example, 56% of middle-income Canadians who hadn’t met with financial professionals had also never invested their savings. Of those who had met with a financial professional, only 22% had failed to invest.

Further, a greater proportion of those who met with a financial professional scored a C or higher on various financial behaviours, such as saving and investing, relative to those who didn’t (82% versus 54%).

Working with a financial professional might be particularly important considering Canadians’ low rates of financial literacy. The survey found that only one-third of middle-income Canadians feel confident with general concepts such as saving and budgeting, and fewer than two in 10 could explain the concept of compound interest or how to invest in a financial product.

For more details, read the Primerica report.

About the poll: Conducted by Golfdale Consulting in February 2019, the online survey polled a representative sample of 1,000 Canadians aged 18 and older with household incomes between $20,000 and $100,000. All data was weighted to Canada Census (2016) based on age, gender and region. The margin of error is about 3%.

Estate Planning

U.S. regulators halt alleged Ponzi scheme

The scheme raised US$30 million from more than 300 investors in the U.S. and Canada

A U.S. court has issued an order shutting down an alleged multi-million dollar Ponzi scheme targeting investors in Canada and the U.S.

A U.S. district court judge in the southern district of Florida has granted the U.S. Securities and Exchange Commission’s (SEC) request for a temporary restraining order and temporary asset freeze to halt an ongoing Ponzi scheme that, the SEC alleges, raised US$30 million from more than 300 investors in the U.S. and Canada.

The SEC has charged a Florida-based cryptocurrency business, Argyle Coin LLC, and its principal, Jose Angel Aman, in the case. Alongside the freeze orders, the court also appointed a receiver for Argyle Coin.

The SEC alleges that Argyle Coin represents the continuation of an investment scheme involving two other companies Aman owns, Natural Diamonds Investment Co. and Eagle Financial Diamond Group Inc.

According to the SEC’s complaint, “Aman, Natural Diamonds, Eagle, and Argyle Coin, misused or misappropriated more than $10 million of investor funds to pay other investors their purported returns and for Aman’s personal expenses, including rent on his home, purchases of horses, and riding lessons for his son.”

The SEC is seeking disgorgement of allegedly ill-gotten gains and financial penalties against Natural Diamonds, Eagle, Argyle Coin, Aman, among other defendants in the case.

Solutions Banking All-in-One

Banks sell mortgage insurance, but independent experts say you shouldn’t buy it

A woman helps a girl ride a bike in front of a house in Brampton, On. on May 20, 2017.

Personal finance experts are a pretty soft-spoken bunch. It isn’t often that they say they would “never ever” advise buying a certain financial product.

But that is exactly what they generally say when asked about mortgage protection insurance, according to Anne Marie Thomas of InsuranceHotline.com, an insurance comparisons site.

Mortgage protection insurance isn’t the mortgage insurance most Canadians are familiar with, the one you need to buy, generally from the Canada Mortgage and Housing Corp. (CMHC), when your down payment is less than 20 per cent of the value of your home.

Unlike the better-known mortgage insurance, which protects lenders if homeowners default, mortgage protection insurance is, essentially, a type of life insurance. It covers your mortgage debt if you die or become disabled.

Banks generally try to sell homeowners this type of insurance when they sign up for a new mortgage. Insurance premiums are then seamlessly added to their monthly mortgage payments.

So, what’s not to like about that?

A lot, according to Thomas:

1. The payout from mortgage protection insurance shrinks with your mortgage

These kinds of policies only cover your outstanding debt, meaning the payout gets smaller and smaller as you pay off your mortgage. Insurance premiums, on the other hand, stay the same through the insurance term.

2. You may find out when you file a claim that you aren’t eligible for coverage

Mortgage insurance policies are “typically underwritten after the fact,” noted Thomas. This means that the insurance company will only take a close look at your case once you file a claim. And it may very well find that something in your particular situation violates the insurance contract, which would leave your family without coverage just when they need it most.

If you purchased mortgage protection insurance, comb through your policy carefully to make sure there’s nothing that could potentially exclude you for coverage, advised Thomas.

3. Your might get saddled with higher premiums when you renew your policy

With mortgage protection insurance, you’ll need to renew your policy at the end of your mortgage term, said Thomas.

Your new premium will be based on your — now smaller — outstanding mortgage balance, but that doesn’t mean you’ll be paying less. Because you’re a bit older, your premium won’t necessarily go down — in fact, it may go up, Thomas said.

4. Your bank, not your family, pockets the payout

Assuming the claim goes through, mortgage insurance guarantees your family won’t have to worry about mortgage payments if you die or become disabled.

In case of death, your beneficiaries can counts on a lump-sum payout that will take care of the outstanding balance, according to Jason Heath of Objective Financial Partners, a fee-only financial planning firm. In case of disability, the policy will generally cover your monthly mortgage payments until the debt is extinguished, he added.

But does it make sense to use the money to pay off the mortgage?

Not necessarily, said Heath. Perhaps your survivors could have easily eliminated mortgage by selling the house. Or they might have preferred to use the money for other purposes, while keeping up with your mortgage payments.

Mortgage protection insurance means any payout will flow out to your mortgage lender, not to you or your family, noted Thomas. And that’s much like CHMC insurance.

Consider plain life insurance instead

Skipping on mortgage protection insurance doesn’t mean you have to go without coverage. Instead, you could buy life insurance, both Thomas and Heath said.

With life insurance, your payout remains the same through the term of the policy and the money comes with no strings attached.

For example, if you had a $300,000 mortgage and took out a policy for the same amount, your beneficiaries would still receive $300,000 even if you had paid down your mortgage in full by the time the claim is filed.

And life insurance is generally much cheaper, too, said Thomas.

“It typically could end up costing you half as much,” she said.

Why does anyone get mortgage protection insurance, then?

Many homebuyers, especially those buying their first home, haven’t done enough research to know what they’re getting into, said Thomas.

“Generally, the way it’s offered to [homebuyers] is when they’re sitting there, signing a whole bunch of [mortgage] paperwork and they’re bored and they’re starting at the wall,” said Heath.

When the bank proposes adding mortgage protection insurance, “for most people, it’s a five-second decision.”

Banking and mortgage industry professionals are often under enormous pressure to sell mortgage insurance, and benefit handsomely through commissions when they do, said Heath.

“Your friendly neighbourhood banker is financially motivated to get you to buy mortgage insurance, whether it’s in your best interest or not,” he added.

That may be why, a few years back, Heath himself discovered in his first-ever mortgage statement that he was, in fact, paying for mortgage protection insurance even if he had clearly declined coverage.

Heath eventually got his lender to cancel the policy and refund the premiums.

But many homebuyers aren’t well-informed enough to know they shouldn’t have signed up for the service in the first place.

“Mortgage [protection] insurance is very expensive, but it’s a captive market,” said Heath.