Wealth Preservation and Estate Planning
For many people, a growing concern as they advance in years and accumulate assets is how to transmit that wealth to their children and other heirs while minimizing the size of the bite taken by the tax man and, potentially, creditors.
Inthes early stages of one's business or career, one may be called upon to give personal guarantees for business debt. It is fair to say that these guarantees are given to facilitate the accumulation of wealth for one's self and ultimately one's heirs rather than to necessarily make one's creditors wealthy. As a result, early in one's career it may be prudent to carry a significant amount of life insurance. Life insurance remains the only way to transfer wealth outside the will and without taxes. Thus early in a businessperson's career, when much of that persons wealth is cewntered intheir business and may be leveraged to permit business growth, significant life insurance may be required to ensure that the family is provided for as well as the creditors. As mentioned above Life insurance does not go into the estate. That means that life insurance is creditor proof. Secondly life insurance is not income, rather it is restitution for a loss and is therefore tax free. Therefore, in the early stages of ones career life insurance may be the only way to ensure ones family is provided for should tragedy strike.
As one's business and career matures, the significance, if not existence, of these loan guarantees may be minimized rendering the concern with creditors negligible or minimal. This is to say that as ones exposure to creditors diminshes, the biggest threat to wealth transmission is taxes. This does not mean that insurance is no longer necessary. However, since the threat to be mitigated is tax, there are other mechanisms and initiatives available to the businesssperson.
As assets accumulate the bite taken by the tax man becomes an increasingly significant concern. For this reason, as may have already been surmised, a proper estate plan will involve the services of several professionals including the lawyer. For those individuals with significant holdings, an accountant, investment adviser and a tax lawyer may be required for the smooth transition of wealth from the senior generation to the beneficiary generation. There are a number of mechanisms by which this may be completed, whether it is by family trust or asset freeze, or other mechanisms which go beyond the scope of this article. Suffice it to say that regardless of the level of your current wealth it, would serve you well as a Testator, to at least consult with or consider the implications of the disposition of your assets prior to signing off your Will or determining that your Will is sufficient. Upon your death, the Canadian government will deem you to have disposed of all of your assets, at fair market value, at the
time of your death and will assess taxes against your estate based on that assumption unless adequate measures and steps have been taken previously. It is the job of your estate planning team to help you ensure that the minimum amount of tax is paid and the maximum amount of wealth is transferred to beneficiaries of your choosing, not the government's.
Wills are the last time that a person's desires will be expressed to the world. In most cases, once your Will is read by the Court, whatever you have said is the last time that you desires will be taken into account. For this reason it is essential that your Will clearly expresses your desires in as unequivocal a fashion as possible.
At Cody & Company, we believe that the best Will is the simplest Will that achieves the client's desires and needs. That said, when crafting a Will, it is important to take into consideration potential liability and tax issues that may arise from the distribution of the estate. In order to fully understand possible thesee issues, we ask for a complete list of assets owned by the individual so that we can arrange for a proper transmission of those assets to the Beneficiaries with the least amount of tax possible.
There is much concern among the public about the cost of probate. This concern is largely unwarranted, especially in Alberta, where the maximum probate charge is $400.00. There are jurisdictions in Canada where the probate charge is significant and may require planning, however, Alberta is not one of them.
For many people, the biggest decision in the Will is who to have act as Executor. This is an important consideration as the Executor must be someone with integrity who will fulfill your desires to the best of their ability and who is prudent enough to know when they require professional assistance. Your selection of an Executor should also be discussed with the potential Executor. If an individual is unwilling to be an executor and the alternate is similarly unwilling or unable, this could add costs and delays to the distribution of assets after death.
Given the significance of one's Will, and the fact that the individual whose wishes are being expressed is not available to clarify, there are strict rules on how a will is to be interpreted. If a Will is entirely in the Testator's handwriting, it may still be valid in Alberta. If a Will is made of partially handwritten and partially typewritten information, there may be problems with its interpretation in Alberta especially if it has not be properly witnessed and the witness to the signing cannot be found at the time the Will is to be probated. In Alberta, at this time, a Will must be in writing, that is to say it must be in a permanent hard copy format, be that ink on paper or etching on stone. A video or audio expression of wishes does not qualify as a Will, and in fact, may not be admissible as evidence to support the wishes of the Testator should there be any question regarding the distribution of assets.
Individuals are advised to review their Wills every five years. Over time, an individual's assets may increase or decrease, the number and precise persons who are deemed to be that person's beneficiaries may change with the addition of children or the death of spouses or other changes in the person's social circle.
Finally, legislation regarding Wills and governing the interpretation and execution of Wills does change from time to time and for all of these reasons it is prudent to review one's Will at least once every five years. To clarify, one need not revise or rewrite one's Will every five years necessarily, however, a periodic review of the Will will determine if any revision or rewriting is required.