My name is Mark Goodfield. Welcome to The Blunt Bean Counter ™, a blog that shares my thoughts on income taxes, finance and the psychology of money. I am a Chartered Professional Accountant and a partner with a National Accounting Firm in Toronto. This blog is meant for everyone, but in particular for high net worth individuals and owners of private corporations. The views and opinions expressed in this blog are written solely in my personal capacity and cannot be attributed to the accounting firm with which I am affiliated. My posts are blunt, opinionated and even have a twist of humor/sarcasm. You've been warned. Please note the blog posts are time sensitive and subject to changes in legislation or law.

Monday, October 15, 2018

Obtaining a Clearance Certificate for an Estate

I have written numerous times on this blog about estate issues. I was quite surprised when I realized I had not posted on the issue of obtaining a clearance certificate for an estate. So today, I remedy this omission and discuss when a clearance certificate is required and how you go about obtaining one.

What is the Purpose of a Clearance Certificate?


A clearance certificate provides the following for an executor(s):
  • Confirmation that an estate of a deceased person has paid all amounts of tax, interest and penalties it owed at the time the certificate was issued
  • Confirmation the legal representative can distribute assets without the risk of being personally responsible for the tax debts of the deceased and estate
Consequently, if as an executor(s) you decide to distribute the assets of the estate without obtaining a clearance certificate, the CRA can hold you personally liable for any unpaid tax debts of the estate.

Do You Have to Obtain a Clearance Certificate?


In a complicated or contentious estate, I would suggest this is not even a consideration. Obtain a certificate. However, where an executor is the sole beneficiary of an estate or the beneficiaries are siblings that get along, the answer is not as clear-cut. I have had estate lawyers suggest a clearance certificate should be obtained, since it is always better to be safe than sorry. On the other hand, I have had estate lawyers suggest that there is no point when there is no reason to feel there are any unpaid tax debts and there is no contention in the estate.

As an executor, you need to understand the estate may have tax exposure to past transactions you may not even be aware of, even if you are sure there are no current debts. For example, the deceased may have missed filing a form such as the T1135 Foreign Verification form for several years that is subject to penalty or claimed the qualifying small business corporation capital gains exemption in the past and it is subsequently audited and denied or transferred property to family that resulted in a deemed disposition and never reported the deemed disposition. These are just a few of many potential tax issues that could result in taxes owing if uncovered or if the CRA audits prior returns.

I suggest being safer than sorry is generally the most prudent route. However, I have seen several estates where the executor(s) decide to not request the certificate because they are the sole beneficiary or do not feel there are any unpaid tax debts.

When Do You Request a Clearance Certificate?


You should request a clearance certificate once you are ready to distribute the remaining funds/assets of the estate. The certificate should only be requested once you have paid all tax debts and filed all applicable personal and T3 (estate returns). The request cannot be filed until you have received notice of assessments for all returns filed, especially the last return filed.

How to Apply


This is what the CRA says is necessary to apply:

For an individual (T1) or trust (T3):
  • a completed Form TX19
  • a completed Form T1013, Authorizing or Cancelling a Representative, signed by all legal representatives, authorizing an accountant, notary or lawyer, or any other person, to act on your behalf. Also use the form if you want the CRA to send the clearance certificate to an address other than yours
  • a detailed list of the assets that the deceased owned on the date he or she died, including all assets he or she held jointly, and all registered retirement savings plans and registered retirement income funds (even if he or she named or designated a beneficiary) and their adjusted cost base and fair market value.
One of the following:
  • a complete and signed copy of the taxpayer’s will, including any amendments, renunciations, disclaimers and probate documents that apply. If the taxpayer died intestate (without a will), attach a copy of the document appointing an administrator (for example, the letters of administration or letters of verification issued by a provincial court)
  • a copy of the trust agreement or document for a living trust
Also include the following documents if they apply to your situation:
  • any other documents proving that you are the legal representative
  • a copy of the Schedule 3, Capital Gains (or Losses) from the final tax return of the deceased
  • a list of all assets transferred to a trust, including (for each asset): a description, the adjusted cost base, and the fair market value
  • a statement of how you propose to distribute any holdback or residual amount of property
  • the names address and social insurance numbers or account numbers of any beneficiaries of property other than cash
It has been my experience that the statement of how you propose to distribute can be problematic. What I have done in the past is advise the CRA who will report the income for the period from the filing of the last return and the issuance of the clearance certificate. For example, if two brothers are the beneficiaries and there is a $200,000 GIC earning 2% interest, I advise the CRA that each brother will report ½ of the interest on their personal tax returns.

Interim Distributions


If you have been an executor, you will know beneficiaries have an expectation of receiving their share of the estate promptly (a cynic would say: often before the deceased is buried). Thus, often, an executor will make an interim distribution because it appears there will be minimal tax debts or quite frankly as a way to appease the beneficiaries. If you are interested in reading more about this issue, I suggest reading this article on interim distributions by Lynne Butler, an estate lawyer and writer behind the excellent blog, Estate Law Canada.

The Finalization Process


Upon filing the clearance certificate, the CRA will send you an acknowledgement letter (they say within 30 days) of receiving your request for a clearance certificate.

The CRA says “that the assessment can take up to 120 days, assuming you provide all of the necessary documents. However, in certain situations, the CRA may need to do an audit before it issues the clearance certificate”. In my experience, the process often takes much longer, even where an audit is not undertaken.

This site provides general information on various tax issues and other matters. The information is not intended to constitute professional advice and may not be appropriate for a specific individual or fact situation. It is written by the author solely in their personal capacity and cannot be attributed to the accounting firm with which they are affiliated. It is not intended to constitute professional advice, and neither the author nor the firm with which the author is associated shall accept any liability in respect of any reliance on the information contained herein. Readers should always consult with their professional advisors in respect of their particular situation. Please note the blog post is time sensitive and subject to changes in legislation or law.

4 comments:

  1. Also to note in Ontario there are additional steps required.
    Effective January 1, 2015, executors will be required to file an “Estate Information Return” with the Ministry of Finance within 90 calendar days after the Certificate of
    Appointment of Estate Trustee is issued by the government. Failure to do so can result in a fine and/or imprisonment.

    This may be a topic that is a completely new post or future post. It certainly has me concerned being the executor of my parent's estate. The Ontario government can even come back for money after the estate has been distributed. Then the executator is responsible for paying . Or at least that is my interpretation.

    Kevin

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    1. thx Kevin for pointing that out. I discussed the Ontario laws in a separate post a couple years ago, but thx again for the reminder.

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  2. I am executor of an estate. The estate lawyer has advised to not pursue probate. The estate is insolvent, no real estate owned, incorporated business and personal account with very, very low balances. The deceased has not paid federal or business tax in years. One business loan cheque, written by the deceased previously, has been cashed one month after death. There isn't enough cash to cover funeral expenses. I withdrew 75% of the cost in cash, with receipts as proof and personally paid the additional 25%.
    Am I liable for the tax bill, due to withdrawing to pay funeral expenses?
    Do I have limited or unlimited liability?

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    Replies
    1. Dawn, sorry but I am not an estate lawyer, so I cannot comment. In regard to funeral expenses, my understanding is that the banks administratively allow withdrawals from the estate account for funeral expenses, but I am not sure if that absolves you from liability or not, I would hope so, but again, you need to ask the estate lawyer these questions.

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