An executor of an estate, whose residue was bequeathed to a spousal trust, paid the estate debts with liquid assets, transferred 75% of the remaining assets to the pousal trust and retained the balance pending a federal clearance certificate. If the executor chooses to sell or otherwise dispose of some of these retained assets (e.g., retracting preferred shares, or selling land), could the s. 70(6) rollover still apply to such properties on the basis that replacement property of equivalent value was distributed to the spousal trust? CRA responded (TaxInterpretations translation):
[S]ubsection 70(6) applies respecting each property of the deceased individually and could apply to a specific property in the residue of the estate. However, subsection 70(6) applies only if the property that the Spousal Trust receives is the same as the property which was deemed to be disposed of by the deceased immediately before death. …
If an executor, in performing the estate administration, is under an obligation to dispose of property or he exercises his power to dispose of the property… subsection 70(6) is not complied with since the property has not vested indefeasibly in the trust. We consider that a Spousal Trust must ultimately receive the property in order to find indefeasible vesting.