Implications of the “Death Tax”: Do You Really Need to Be Concerned?

The so-called “death tax” is often discussed in connection with estate planning, but its implications vary widely depending on where you live. While Canadians don’t have a formal estate tax, the costs associated with transferring wealth after death can still be significant, particularly through probate and capital gains legislation. By contrast, the U.S. has a federal estate tax that can greatly impact high-net-worth families. Understanding these differences is essential for making informed decisions about your estate. As one expert points out, “Many people believe that the ‘death tax’ only refers to large estates, but even mid-sized estates can face hefty fees due to probate and capital gains taxes.” For Americans, the federal estate tax presents a more complex challenge: “In the U.S., estate tax planning often involves trusts, life insurance strategies, and tax exemptions to reduce the impact of estate tax, which can reach up to 40%,” says a U.S.-based estate planner. And while Canadians might not face a federal tax on estates, they are still subject to probate costs, which vary based on your province. “It’s easy to overlook how much probate can eat into an estate’s value, especially when you’re dealing with real estate or stocks that have appreciated significantly,” notes a financial advisor in Ontario. With these varying tax implications, it’s crucial to understand how probate and estate tax differ and how they could affect your legacy.

What Is the “Death Tax”?

The term “death tax” refers to taxes levied on the transfer of assets after a person dies. In the U.S., this includes the federal estate tax, which applies to estates that exceed a certain threshold, currently around $12.92 million in 2023. In contrast, Canada does not have a comparable estate tax; instead, it imposes other fees and requirements that can affect estate value, primarily probate costs and capital gains that may be owing on assets that are transferred.

Probate Costs in Canada: The Key Consideration

While Canadians avoid the complexities of an estate tax, they still face probate costs in nearly every province and territory. Probate is the process where the court validates a will, ensuring it’s legitimate and that the executor has the authority to administer the estate. Probate costs vary by province, with some provinces, such as Ontario and British Columbia, imposing higher fees based on the estate’s value, while others, like Alberta, cap probate fees.  “Many people are unaware of how probate costs can accumulate,” says a Toronto-based lawyer specializing in estate planning. “It’s not just the probate fees; you also need to factor in the cost of filing taxes, asset valuations, and sometimes even the legal fees for dealing with disputes.” These additional costs can reduce the estate’s value significantly.

Probate Fee Ranges in Canada:*

• British Columbia:  0.6% on estates between $25,000 and $50,000; 1.4% on estates over $50,000
• Ontario: Approximately 1.5% on the estate’s value above $50,000
• Saskatchewan: 0.7% on the estate’s value
• Alberta: A capped fee, with a maximum of $525 for estates over $250,000.
• Nova Scotia: Tiered system based on value of the estate
• Newfoundland: Estates valued at $1,000 or less are subject to a flat fee of $60. For estates worth more, there is a fee of $0.60 for every additional $100
• New Brunswick: Tiered system based on the value of the estate
• PEI: Tiered system bases on value of the estate; $400 for first $100,000 plus 0.4% for estates valued over $100,000
• Nunavut: Tiered system based on value of the estate, capped at $425 for estates valued over $250,000
• Yukon: $140 on estates valued over $25,000
• Northwest Territories: Tiered system based on the value of the estate, capped at $435 for estates valued over $250,000
• Manitoba: no probate fees
• Quebec: no probate fees

* Probate fees are subject to change.  Please be sure to do your due diligence when dealing with an estate in the applicable province or territory. 

In addition to probate costs, the Canada Revenue Agency (CRA) considers any assets that have appreciated in value subject to capital gains tax at the time of death. This can significantly reduce the estate’s value, especially for estates with properties or investments that have appreciated. “People often assume that once they pass away, the tax implications are over,” says a tax consultant in Calgary. “However, the reality is that capital gains tax will be due on any appreciation in assets, which can leave the estate with a substantial bill to pay.” Be sure to get proper advice when structuring beneficiaries on any of these assets, as some assets can pass to specific beneficiaries without incurring these costs.

The U.S. Estate Tax: A Complex System

Unlike in Canada, the U.S. has a federal estate tax that applies to estates exceeding a significant exemption amount, approximately $12.92 million in 2023. The estate tax rate can reach up to 40% for very large estates. Additionally, some states also have their own estate or inheritance taxes, creating an added layer of complexity. As a result, many wealthy Americans engage in sophisticated estate planning strategies to reduce their estate tax liability.

Key U.S. Estate Tax Facts:

• Federal exemption (2023): $12.92 million per individual, effectively doubling for married couples.
• Tax rate: Ranges from 18% to 40% on estates over the exemption.
• State estate and inheritance taxes: Imposed by several states with differing exemption levels and rates.

Why Canadians Still Need to Plan

Even though Canada’s system is simpler, probate and tax costs can still significantly impact estate value. Canadians should be aware of a few key considerations:

1. Planning Around Probate: Strategies like designating beneficiaries, using joint ownership with rights of survivorship, or setting up trusts can help avoid probate on certain assets. By doing so, you can potentially minimize the estate’s exposure to probate fees and streamline the transfer process.

2. Minimizing Capital Gains Tax: Assets that have appreciated in value can be subject to capital gains tax. Strategic gifting, transferring assets, or holding certain investments in tax-advantaged accounts may reduce this impact.

3. Cross-Border Implications: If you hold assets in the U.S. or if you are a dual citizen, you may be subject to U.S. estate tax. This makes planning essential, as U.S. tax authorities can apply estate tax to U.S. assets even if the owner resides in Canada.  “Cross-border tax issues are becoming more common as people move between Canada and the U.S.,” warns a cross-border financial advisor. “It’s vital to ensure that any U.S. assets are structured properly to avoid triggering unnecessary estate tax liability.”

Is the “Death Tax” a Concern for Your Estate?

The “death tax” conversation may seem less pressing for Canadians than for Americans, yet the impact of probate and capital gains taxes on estates in Canada remains real. Without a proper plan, your beneficiaries may see a reduced inheritance due to these costs. If your estate includes significant assets, particularly appreciated property or investments, proactive planning can make a considerable difference.

Final Thoughts

The good news for Canadians is that our system is less complex than in the U.S., but it’s still essential to plan. Whether you’re looking to minimize probate costs, manage capital gains implications, or navigate cross-border tax issues, a well-structured estate plan can help secure the legacy you intend to leave. Consulting with a professional knowledgeable in Canadian estate planning can help you devise a strategy that maximizes the value passed on to your loved ones.

“We as a society do not talk about money, death, or end-of-life planning at the dinner table. Canadians do pretty much anything they can to avoid thinking about their own mortality.”  This does not have to be your story. Proactive planning, guided by a Certified Executor Advisor like myself, provides you with peace of mind and ensures your loved ones are not left struggling to navigate complex decisions during challenging times.

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