So today, without further ado, Katy discusses how many wills are drafted without consideration of RESPs.
New Will Provisions for the 21st Century – RESPsBy Katy Basi
I have reviewed numerous wills in my practice as a wills and estates lawyer. Some were dusty with age, while others were signed fairly recently, but had evidently been drafted from a 20th century precedent. Thanks to the generosity of The Blunt Bean Counter, over the next few months I’ll guest post on a few 21st century estate planning topics, including digital assets and reproductive materials. Today’s topic is Registered Education Savings Plans (“RESPs”).
Are you the subscriber under an RESP? If so, you should have an RESP provision in your will, full stop. (My focus in this blog is on individual and family RESPS, not on group plans, though group plan subscribers should also have RESP provisions in their wills!)
An RESP is a contract constrained by numerous provisions of the Income Tax Act (Canada) (the “ITA”). Many of my clients assume that their children (as the beneficiaries under their RESP) would automatically receive the RESP upon their death, just as if the children were beneficiaries under their Registered Retirement Savings Plan (“RRSP”). This assumption is, for the most part, dead wrong. While an RRSP collapses upon the death of the holder, an RESP contract generally provides that the contract survives the death of the subscriber.
The subscriber of an RESP has a great deal of control over the RESP, so the relevant question on his death is…who is the new subscriber?
Even with joint subscribers, a new subscriber is still required when both spouses are deceased. The identity of the subscriber is critical for many reasons:
(i) The subscriber makes all investment decisions for the RESP.
(ii) The subscriber decides when amounts will be withdrawn from the RESP, how much they are, and whether the amounts are identified as a return of contributions (not taxable) or an educational assistance payment (taxable to a beneficiary under the RESP, as it consists of accumulated income and/or government grants).
(iii) Subject to the terms of the RESP contract, a subscriber may require a return of contributions be paid to himself, rather than to the beneficiary.
(iv) The subscriber receives all income and capital remaining in the RESP if the RESP has to be collapsed because the beneficiaries have not enrolled in qualifying educational programs within the prescribed time limits.
So what should the RESP clause say? The clause will appoint the new subscriber, of course, and it often gives the new subscriber:
(i) directions concerning how to manage the RESP,
(ii) the ability to fund the RESP out of the estate, and
(iii) the discretion to collapse the RESP if necessary.
The new subscriber might be the executor, another family member, or a testamentary trust set up in the will for the benefit of the same child who is the beneficiary under the RESP. The last option is helpful in connecting the intended source of the funds for the RESP (being the money held in the testamentary trust) with the person in charge of the RESP (being the new subscriber, ie the testamentary trust itself).
Let’s take the simple case of a sole surviving parent (“Dad”) leaving the residue of his estate to his only daughter, who is entitled to 10% of the residue at age 21, 50% at age 25 and the remainder at age 30 (this structure would usually qualify as a testamentary trust). Without an RESP provision, would the daughter be entitled to claim 10% of the RESP at age 21? What if the daughter was not enrolled in a qualifying educational program at that time? Government RESP grants may need to be repaid, and penalty taxes may be levied on any income payments made out of the RESP. It would be a very expensive 10%.
What if Dad’s executor is a trust company? The trust company may require a specific RESP provision to be in Dad’s will. For example, the RESP provision may require the new subscriber to be the parent of the RESP beneficiary (if there is a parent still alive), the beneficiary herself (if she is over the age of majority – of course, this is akin to giving her the keys to the safe), or the guardian of the beneficiary (if the beneficiary is still a minor). Otherwise, the trust company might automatically become the subscriber, due to its status as executor of the estate – and the trust company may not want that responsibility.
So, our simple case was not so simple after all – but it could have been worse! An even messier example follows. Grandfather funded an RESP during his lifetime for the benefit of his grandchildren. Under his will, Grandfather left half of the residue of his estate to his good friend Mavis, and the other half to a charity. Will Mavis and the charity demand that the RESP be collapsed and the RESP funds added to the residue, with all of the inequity and nasty tax consequences that would result? Grandfather would roll over in his grave – he needs an RESP provision in his will.
To avoid family members, executors, lawyers and RESP providers spending valuable time and energy addressing such untenable situations, make sure that your will has an RESP provision too!
Katy Basi is a barrister and solicitor with her own practice, focusing on wills, trusts, estate planning, estate administration and income tax law. Katy practiced income tax law for many years with a large Toronto law firm, and therefore considers the income tax and probate tax implications of her clients' decisions. Please feel free to contact her directly at (905) 237-9299, or by email at email@example.com. More articles by Katy can be found at her website, katybasi.com.
The above blog post is for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Readers are advised to seek specific legal advice regarding any specific legal issues.
The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.