Everything You Need to Know About an Estate Freeze

What is an estate freeze? How does it work? If these questions have been on your mind, then you are in the right place! Inside this guide, you will uncover one of the best ways to transfer assets from your estate to your heirs so that they are not saddled with an unexpectedly large tax liability. Your business and/or investments do not die when you do. It is important to plan for the most tax-effective handling of your shares and assets so that more ends up in the hands of your beneficiaries than in the hands of the Canada Revenue Agency (CRA).

terms and their definitions

Before we continue, though, here are some terms and their definitions used in this guide:

Capital asset An item that you own for investment purposes because it is expected to generate value over a long period of time, e.g., building, machinery, stocks, and bonds
Capital gains tax When Canadian investors sell a capital asset or investment for more than the original purchase price, the profit realized is subject to capital gains tax as part of your income tax.
Equity Equity represents the shareholders’ stake in the company
Shares and stocks Although used interchangeably, strictly speaking, a share is a unit of ownership while a stock is a measurement of equity
Common shares A type of stock that grants shareholders voting rights and ownership of the corporation’s assets after claims from creditors and preferred shareholders have been fulfilled. Their value is generally from growth in share price over time rather than dividends.
Preferred shares Similar to a bond, this type of stock has a fixed redemption amount and pays shareholders a specified dividend ahead of common shares. (Sometimes called special shares or preference shares)
Aggregate par value The nominal value of each share (as stated in the corporate charter) multiplied by the number of shares issued and typically unrelated to the actual value of the shares.
Deemed disposition Working as if you have actually sold an asset at fair market value (FMV), even without a purchase or sale.
Annuity A long-term investment that exchanges present contributions for future income payments of a fixed amount of money
Grantor trust A type of living trust in which the creator of the trust maintains control over trust’s income and assets, making the trust’s income taxable to the grantor.
Attribution rules Regulation that stops taxpayers from lowering their tax liability by diverting investment income to family members.
Lifetime capital gain exemption An exemption of capital gains tax occurs when shares of a qualifying small business corporation are sold.

As far back as 1726, Daniel Defoe noted in his Political History of the Devil that “Nothing is certain but death and taxes”. Fast-forward nearly 300 years, and not much has changed!

While there are no inheritance or estate taxes in Canada, the Canada Revenue Agency does impose a capital gains tax at death. According to Section 70(5) of the Income Tax Act (ITA), all your capital assets will be deemed as having been sold for proceeds equal to their fair market value on the date of your death. One exclusion of this deemed disposition capital gain is if your spouse (or common-law partner) or a qualifying spousal trust is the beneficiary. If this is the case, then the transferred assets will automatically defer capital gains tax.

Should your wealth comprise an incorporated family business or a portfolio of investments held in an investment holding company, then your estate is vulnerable to substantial taxation. At a time when they should be (hopefully) mourning you, your loved ones will be faced with confusing tax regulations and tough decisions about how to foot the tax bill. The more successful you have been at growing your investments or business, the greater the tax liability your estate will face. All the tax erodes the amount your beneficiaries will inherit. Whether your family members, key employees, or other successors, careful estate planning will save these beneficiaries from having to pay a hefty tax bill before receiving their inheritance.

What Is an Estate Freeze?

An estate freeze is an option for individuals like you to legally set the value of your corporation, qualified small business, real estate portfolio of passive assets, publicly traded securities, or investment accounts at what they are currently worth for tax purposes.

An estate freeze

By “freezing” the value of your assets, an estate freeze allows you, the freezer, to:

  • Postpone payment of tax that would otherwise be due on your death. (Using the time value of money principle, postponing tax equates to saving tax.)
  • Calculate the expected tax that will be payable when the asset is disposed of, including the deemed disposition, and plan for its funding (for example, through life insurance).
  • Multiply your lifetime capital gains exemption (LCGE) or the lifetime capital gains exemption that applies to the business.
  • Transfer the future growth of the assets to the next generation (your children or key employees, for example) without triggering immediate tax consequences – assuming there are clear successors and that the value of the business is expected to appreciate significantly. This is particularly useful for ensuring a smoother transition, especially when there is a time delay in onboarding your successors. With attribution rules in mind, gift taxes prevent a simple handover of shares.
  • Implement income splitting between family members – provided this is done in accordance with the tax on split income (TOSI) rules.
  • Postpone paying tax accrued on future growth until the asset is sold by those who will have benefited from the proceeds of said future growth.
  • Protect assets from creditors.
  • Move surplus cash to a holding company on a tax-deferred basis.
  • Sell preferred shares back to the company (in lieu of dividends) so that, over time you reduce historical capital gains that have accumulated in your estate. (As per the income tax act, this will be taxed as a dividend and not at capital gain rate.)

The benefits of an Estate Freeze

The benefits of an estate freeze are numerous, it’s a strategic way of reducing the value of your estate for tax purposes. It involves transferring ownership of your assets to a trust or corporation while retaining the right to use and control those assets. This can lead to significant tax savings by reducing the amount of taxes that your estate will owe when you pass away. Additionally, it allows your beneficiaries to receive a larger portion of your estate, as the assets are transferred at a lower value, thus reducing the taxes to be paid on those assets. It can also be used to preserve the value of your assets and to make sure they are not subject to any debt or other liabilities. It’s an effective way to plan your estate and to make sure that your assets are passed on to your loved ones in the most efficient way possible.

Who Should Consider an Estate Freeze?

An estate freeze is a complex strategy that may not be suitable for everyone, it’s important to consider your personal financial situation and goals, as well as the current tax laws and regulations, before deciding of an estate freeze is the right strategy for you. An estate freeze is typically most beneficial for individuals with high net worth, or those who own a significant amount of assets that they want to transfer to their beneficiaries. It can also be beneficial for individuals who want to protect their assets from creditors or other liabilities. However, it is not recommended in these cases. It’s also important to note that an estate freeze is a long-term strategy, it’s important to consider the potential changes in tax laws and  regulations that may occur over time. Therefore, before considering an estate freeze, it’s important to seek professional advice from a financial advisor or estate planning lawyer to weigh all the pros and cons and ensure this strategy is the best fit for your financial situation and goals.

Estate Freeze Implementation Methods and Structures

At its core, the gains resulting from an estate freeze are the same. Exactly how you swap your common shares for preferred shares depends on the nature of the asset and the structure of your corporation. Because the implementation methods and structures of estate freezes are so varied, exploring each one in-depth is beyond the scope of this article.

Estate Freeze Implementation Methods and Structures

That said, let’s take a look at some common scenarios. The basic process of implementing an estate freeze can be broken down into three steps:

Step 1: A proper valuation must be done to determine the value of the capital property subject to the freeze. Going forward, we will assume that capital property refers to shares in a private corporation.

Step 2: You convert your common stock to fixed-value preferred shares with a value equal to that of the common shares at the time of the freeze.

At this stage, there are various options available:

  • If you own your own business, you can transfer your common shares to your corporation on a rollover basis and avoid triggering any immediate tax liability. In exchange, you receive frozen preferred shares of the same current value. Now that the entire value of your existing company is now in the preferred shares, the next generation can subscribe for new common shares at a nominal amount.
  • An alternative option is to transfer your common shares to a new holding company in exchange for preferred stock equal in value to the existing value of your common shares. Incorporating a holding company into your structure lets you move passive assets to it from the operating company on a tax-deferred basis, thus qualifying the operating company’s shares for LCGE purposes. Not only does this help to purify the business, but it can also offer your operating company a degree of creditor protection. There are inherent risks involved in this structure, making it imperative that you consult with an experienced wealth advisor.
  • Utilizing a family trust when implementing your estate freeze lets you retain some control of the common shares in your role as (one of the) trustees of the trust. As such, you are also able to decide how the rights associated with the common shares are exercised. A family trust structure affords flexibility in identifying if, when, and who receives dividends from the common shares as well as who receives the family trust’s common shares in the end. Despite its increased reporting and accounting burden, a family trust is highly recommended when implementing an estate freeze.

Step 3: New common shares with a nominal value are then immediately issued to others, typically your children or a discretionary family trust with the children designated as beneficiaries. Future growth of the company then accrues to the common shares – and outside of your estate and associated death tax exposure.

Important Considerations

Note that this article is not meant to replace qualified financial or legal advice.

Important Considerations

To use the lifetime capital gain exemption, various criteria need to be met:

  1. You must be a resident in Canada throughout the tax year in which you claim the capital gain deduction.
  2. Your private corporation must devote at least 90% of its assets in an active business in Canada.
  3. Your shares must be considered a qualified small business corporation (QSBC) share. At the time of sale and throughout the 24 months immediately before that, the share was owned by you, your spouse / common-law partner, or a partnership of which you were a member. (In other words, estate freezes must be implemented at least two years before a sale.)
  4. During the two years preceding the QSBC share’s disposition, it was a share in a Canadian-controlled private corporation using at least 50% of its assets in an active business in Canada.

Can an Estate Freeze Be Undone?

The short answer is, “Yes!”

Can an Estate Freeze Be Undone_

It is possible to re-freeze an estate because:

  • Your heirs have fallen out of favor.
  • The 21-year clock for the trust deemed disposition rule needs to be reset. Accommodate a bump in the cost of the shares and start the freezing process again going forward.
  • The shares have dropped in value. An estate freeze is a type of bet on the growth of your business. However, should an economic downturn prove your bet wrong (like during the COVID-19 pandemic, for example), then you can undo the freeze and set a new, lower value for the re-freeze. Effectively, you are placing your family and company in a better position for the appreciation that will occur as the economy picks up. When the value of your shares recovers, you will also have eliminated capital gains on the difference.

The Role of a Financial Advisor in an Estate Freeze

The role of a financial advisor in an estate freeze is crucial, they can provide guidance on the different options available, assist in reviewing and comparing plans, and help to ensure that the plan is in compliance with any legal and regulatory requirements. They can help you understand the tax implications of an estate freeze and how it will affect your overall financial situation. A financial advisor can also help you to understand the long-term implications of an estate freeze and how it will affect your beneficiaries. They can work with you to create a comprehensive estate plan that includes an estate freeze and other strategies to ensure that your assets are passed on to your loved ones in the most efficient and tax-efficient way possible. A financial advisor can also help you to review and update your estate freeze over time to ensure that it remains in compliance with any legal and regulatory changes and that it’s still aligned with your financial situation and goals.

Common Mistakes to Avoid When Implementing an Estate Freeze

When implementing an estate freeze, it’s important to be aware of the common mistakes that individuals make in order to avoid them. One of the most common mistakes is failing to consult with a financial advisor or estate planning lawyer before proceeding. An estate freeze is a complex strategy, and it’s important to understand the legal and tax implications before making any decisions. Another mistake is not considering the long-term implications of an estate freeze, it’s important to understand how the strategy will affect your beneficiaries over time, and to ensure that it’s still aligned with your financial situation and goals. Additionally, failing to review and update your estate freeze over time is also a common mistake, as tax laws and regulations change, it’s important to ensure that your estate freeze remains in compliance with these changes. Finally, not being aware of the potential risks and drawbacks of an estate freeze is another common mistake. It’s important to weigh all the pros and cons and to make sure that this strategy is the best fit for your financial situation and goals before proceeding.

Estate Freeze and Asset Management Strategies

Our wealth advisors are always happy to provide you with the information you need to make informed decisions about your financial future. Remember that an estate freeze is a complex strategy and it’s important to seek professional advice from a financial advisor or estate planning lawyer before proceeding. 

In conclusion, Nour Private Wealth (NPW) is a Canadian company that specializes in estate freeze and other forms of wealth creation and preservation. Our team of experienced wealth advisors is dedicated to helping clients in seven provinces across Canada to manage their wealth efficiently and effectively. If you have any questions about estate freeze or any other wealth management strategies, don’t hesitate to contact us.

This commentary is provided for general informational purposes only and does not constitute financial, investment, tax, legal, or accounting advice. Please speak with your accountant about tax or accounting advice.  Individual circumstances and current events are critical to sound investment planning and not all investments are suitable.  Please speak with your investment advisor prior to investing.

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