Tax Treatment of Testamentary Trusts

Posted in Blog, Real Estate

The challenges that people face in making an estate plan for a blended family will cause most people to lose sleep.  Once decisions have finally been made, the challenge is still not over. Family dynamics, relationships and priorities constantly change, so the matter must be reviewed and updated regularly.

All too often, people take the approach to leave everything to the surviving spouse and in the event of the death of the last spouse, the estate is to be divided among all the children, including both sides of the family.  While this is simple and therefore attractive, it misses a very significant risk to the children. The surviving spouse is legally entitled to change their will and therefore there is no assurance to the deceased spouse that their children will receive an equal inheritance or indeed that they will receive anything at all. The surviving spouse may remarry or their relationship with their step children may change, in which cases the step children may have their share reduced or eliminated altogether in the will of the surviving spouse. If this should happen, the children of the deceased spouse may be left without any remedy. They cannot challenge the will of a step parent. They could have challenged the will of their deceased parent, but in most cases they will not want to rock the boat as the relationship with the surviving step parent will still be on good terms. If that relationship deteriorates, it will usually be over a long period of time, however the children of the deceased parent only have 6 months from the date of Probate of the Estate of their parent’s will (not the step parent’s will) to apply to court to ask for the will to be varied. This means that they will be asking for their step parents share to be reduced. They will also incur court costs and have no guarantee of the outcome. All and all this is not a good position to be put in.

To avoid these risks, it is advisable to leave something to your children on your death, so that even if your surviving spouse changes their will, then your children will still have received something from you on your death. The hard part of making such a decision is whatever you give your children, is something that your spouse will not receive.

There are a couple things that can be used to help if the task becomes too difficult, which it often does as there is almost never enough to satisfy everybody. Sometimes a part of the estate may be held in a life estate. This means that the surviving spouse may use it (eg the family home) or receive the income from it (eg the investment account) until their death at which time that asset will go to your children. Another common option is to purchase life insurance so that your children are guaranteed to receive something on your death.

If you are a spouse in a blended family and have estate planning questions, please give us a call.

Photo courtesy of Tetra Pak

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