Trusts created during your lifetime — how they work, their tax treatment, and the key types used in Canadian estate planning.
An inter vivos trust — Latin for "between the living" — is a trust created and funded during the settlor's lifetime, as opposed to a testamentary trust which is created through a will at death. Inter vivos trusts are powerful estate planning tools for probate avoidance, incapacity planning, asset protection, and income splitting.
When you create an inter vivos trust, you transfer legal ownership of assets to the trust (held by a trustee) while specifying the terms under which those assets are managed and distributed to beneficiaries. The trust is a separate legal entity for tax purposes — it files its own T3 tax return annually.
Unlike a testamentary trust (which only comes into existence at death), an inter vivos trust is active immediately and can accomplish planning goals during the settlor's lifetime as well as after death.
Available to Canadians age 65 or older. Key features:
Alter ego trusts are particularly popular in Ontario and BC, where probate fees are significant.
Similar to an alter ego trust but for spouses or common-law partners. Both spouses are beneficiaries during their lifetimes. Assets avoid probate at the second death. Also transfers on a rollover basis.
A trust with multiple family members (spouse, children, grandchildren) as beneficiaries, where the trustee has discretion to allocate income among them each year. This enables income splitting — directing trust income to lower-income family members to reduce overall family tax. Commonly used by business owners holding shares of a family corporation through the trust.
Note: Family trusts do NOT get a rollover on transfer — a deemed disposition occurs when assets are contributed (unless specific exceptions apply, such as transfers between spouses).
A discretionary trust where the beneficiary is a person with a disability. The trustee's full discretion over distributions means the beneficiary has no guaranteed entitlement — preserving eligibility for means-tested government benefits like ODSP. See our Henson Trust guide.
Many Canadians set up "in-trust for" (ITF) accounts for minor children — investment accounts held by a parent "in trust" for a child. These are not formal trusts and lack the legal certainty of a properly drafted trust deed. The attribution rules mean income (interest, dividends) is generally attributed back to the contributing parent, though capital gains may be taxed in the child's hands.
Inter vivos trusts are taxed at the top marginal rate on any income retained in the trust — approximately 53% in Ontario. This makes it inefficient to retain income in the trust; the goal is usually to distribute income to beneficiaries who are taxed at lower rates.
| Tax Rule | Detail |
|---|---|
| Tax rate on retained income | Top marginal rate (~53% in Ontario) |
| Income distributed to beneficiaries | Taxed in beneficiary's hands at their marginal rate |
| Capital gains | 50% inclusion; distributed to beneficiaries retaining capital gains character |
| 21-year deemed disposition | All capital property deemed sold at FMV every 21 years |
| Attribution rules | Loans or transfers at below-market rates may attribute income back to settlor |
| Annual T3 return | Required regardless of income level |
Every 21 years, an inter vivos trust is deemed to dispose of all capital property at FMV — triggering capital gains. For a family trust holding appreciated assets or shares, this can result in a very large tax bill.
Common strategies to address the 21-year rule:
For Canadians age 65+ with significant non-registered assets, an alter ego or joint partner trust can eliminate probate fees on those assets entirely. In Ontario, avoiding probate on a $1M estate saves approximately $14,250. The legal cost to set up the trust is typically $2,000–$5,000 — often recovered in probate savings on a large estate.
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Get KOHO Free — Use Code 45ET55JSYARelated guides: Testamentary Trusts | Henson Trust | Trusts in Estate Planning | Probate Fees