家庭信托：你需要知道的各项事项
Family Trust: Everything You Need to Know
家庭信任（Family trust）
无论您是想少缴税，计划财富转移，还是保护子女的资产或利益，建立家庭信托都是值得考虑的。对于企业家来说尤其如此。需要弄明白家庭信任是否对您有利。
什么是家庭信托（What is a family trust?）？
像公司一样，家庭信托是一个法人实体。它可以持有资产，投资并与第三方签订合同。因此，资产不再属于转让资产的人。
建立家庭信托时，三个角色扮演着关键角色。他们是：
设立人（Settler）
设立人通过将部分资产转移到信托公司中以受益人的利益来创建家庭信托。通常，定居者与受益人没有任何家庭联系，以避免这是为了避免某些税收归属规则的应用。”
受托人（）
也叫执行人。他们是信托的管理员，或者如果是公司，则是董事。他们管理信托的资产，并特别决定向受益人分配收入或资本的方式。为此，他们必须考虑到信托协议中概述其角色和职责的条款。如果受托人也是受益人，则还必须指定没有受益权的第二个独立受托人。
受益人/受益人
这些是从信托中获得收入和资本的人。因为他们从信托的利润中受益，所以有点像他们是公司的股东。在家庭信托中，通常是家庭成员扮演这个角色。
The settler creates the family trust by transferring a portion of their assets into the trust company for the benefit of the beneficiaries. “Normally, the settler does not have any family ties to the beneficiaries,” explains François Archambault, Financial Planner & Senior Advisor at National Bank Private Banking 1859’s expertise centre. “This is to avoid the application of certain tax attribution rules.”
Trustee(s)
These are administrators of the trust or, if it was a company, the directors. They manage the trust’s assets and decide, in particular, on the allocation of income or capital to the beneficiaries. To do this, they have to take into account the provisions of the trust agreement that outlines their roles and responsibilities. If a trustee is also a beneficiary, a second independent trustee without beneficial rights must also be named.
Beneficiary/Beneficiaries
These are the people who receive income and capital from the trust. Because they benefit from the trust’s profits, it’s a little like they are shareholders of a company. In a family trust, it’s often members of the family who play this role.
How is a family trust different from a management firm?
The operation of a family trust is similar to that of a management firm but is not, however, identical.
Often, a management firm is used in the business of an operating company. “Having too much money in a business can lose the deduction for capital gain,” says Archambault. “Therefore, to avoid this, surpluses are sent to a management firm.”
Also, administrators of a management firm have an annual mandate and must be re-elected each year. Trustees, however, remain in office as long as they have the capacity and do not resign.
Finally, the shares of a management firm that are held by a shareholder could be seized after a lawsuit or bankruptcy. “This problem does not occur when a family trust holds the shares,” adds Archambault. “Unless the trust was created right before bankruptcy or creditors’ rights fraud.”
Advantages of a family trust
1. Reduce the tax payable on death
A family trust allows you to pay less in taxes upon the death of the shareholder. This is relevant in cases where an entrepreneur has accumulated enough assets for retirement and does not need the future capital gain of their company. “By using the estate freeze strategy, the trust becomes the owner of the company’s participating shares. Therefore, the capital gain of the shares is in the trust,” explains Archambault. “Upon the shareholder’s death, the capital gain of the shares since the estate freeze is not taxable.”
2. Plan the transfer of wealth
In addition to minimizing the amount of tax payable, a trust helps better prepare the transfer of wealth within the family after the death of the entrepreneur. “The trust can be used to do an estate freeze for an eventual transfer of a business,” notes Archambault. “Often the entrepreneur can ask themselves who would be the best person to take over in the family. They can also redistribute shares later.”
3. Protect assets
A family trust holds assets on behalf of its beneficiaries all while being protected from claims for payments that creditors may exercise over them. “A trust is an independent and distinct patrimony,” says Archambault. “Assets therefore cannot be seized after a lawsuit or bankruptcy.” Warning! The trust must, however, be created when everything is going well. If there are already problems during its creation, a judge could authorize the seizure anyway.
4. Multiply deductions for capital gains
Upon selling shares of a company, there is normal a tax to be paid on the capital gain. However, if shares qualify for capital gains deduction, this could be distributed to many beneficiaries. “The tax payable is therefore minimized because it is shared between beneficiaries. On the other hand, to use this strategy, the trust must hold shares from an operating company,” explains Archambault.
5. Protect a child
The rules are set once the trust is created. Among these, some may specify the way in which money will be given to the children. “A family trust allows you to make a donation without putting it directly in their hands,” says Archambault. “It could, for example, help secure the future of a severely disabled child or even eventually benefit grandchildren.”
From a more technical point of view, a family trust has long been popular for splitting the income of adult children. However, this possibility was considerably limited with the recent reform by the Minister of Finance, Bill Morneau.
What are the disadvantages?
The main disadvantage of a family trust is the deemed disposition rule on the 21st anniversary of the family trust. It’s a little like if, every 21 years, the family trust sold its assets at their fair market value. Therefore, there is tax to pay on capital gains. With a little planning, it’s possible to avoid the application of this rule (for example, assets can be given to the beneficiaries).
On the other hand, the income tax rate for the family trust corresponds to the highest marginal rate. The trust must be seen as a full taxpayer. It is therefore taxed on the income it generates. That’s why creating a family trust entails significant administrative involvement. “You have to file a tax return every year and issue tax slips,” says Archambault. “Trustee must also prepare written minutes of proceedings when making decisions and producing financial statements.”
What are the steps to create a family trust?
To create a family trust, you must follow a few steps:
1. Draw up the trust agreement, ideally by a notary or tax lawyer. Among other things, it allows the naming of the trustee and beneficiaries and the inclusion of various clauses.
2. Make a donation. Normally, to create the trust, there is always an irrevocable donation. Often it is a gold or silver bar. Then, the trust gains its legal existence.
3. Register the donation with the Registre des droits personnels et réels mobiliers (RDPRM).
4. Open a bank account under the name of the family trust.
5. Follow the closing agenda. “A tax professional provides a list of steps to transfer assets, such as shares, into the trust,” says Archambault.
6. Produce annual tax returns and financial statements. Minutes of proceedings must also be written after each decision is made.
Obviously, the different steps of creating a family trust entail costs. Most notably, you should plan for the fees of the various professionals involved in the file. The total costs can vary greatly.
A family trust has several advantages. Work with professionals to make a good analysis of your situation. You will then be able to determine if this solution works for you or if a management firm would be preferable.
