INHERITANCE
TAX
1.
Under
the current regime Inheritance Tax (IHT) is not chargeable on transfers between
husband and wife (the spouse exemption).
2.
In
addition, gifts up to £300,000 (the nil rate band) can be made free of IHT to
other individuals.
3.
Gifts
on death in excess of £300,000 to someone other than a spouse or charity attract
tax at 40 pence in the £. Gifts of
any amount made during a individual’s lifetime may be free of inheritance tax if
survived by seven years.
4.
It
follows from the above that a married couple, in theory, can leave £600,000 IHT
free to their children or other relatives on death.
5.
To
achieve this level of tax free giving it is necessary to utilise the nil rate
band on the death of the first spouse to die: conventional wills where each
spouse leaves his or her entire estate to the survivor effectively increases the
final IHT bill by £120,000 (£300,000 at 40%).
6.
Very
few couples can afford to make an absolute gift of £300,000 to their children on
the first death for a number of reasons:-
·
any
capital is needed to provide an income for the surviving
spouse.
·
the
joint estate is taxable in the main because of the value attributable to the
family home.
In
such cases it is possible to minimise IHT and provide for the financial security
of the surviving spouse by creating what is termed a Discretionary Trust of the
nil rate band.
7.
A Discretionary Trust of the nil rate
band provides that the maximum tax free amount possible is held by the trustees
for the benefit of the beneficiaries.
The class of possible beneficiaries can be as wide or narrow as the
person creating the trust chooses. Flexibility is maintained by listing all the
possible beneficiaries. Mere inclusion in the class does not confer any legal
right to receive any benefit. It is
usual for the class of beneficiaries to include the surviving spouse, children
and grandchildren.
·
The
trustees have absolute discretion as to which one (or more) of the beneficiaries
he/she pays income and/or capital.
·
During
the lifetime of the surviving spouse the intention would, of course, be to
benefit him or her exclusively, although if the surviving spouse had no need of
the funds in any one year income and/or capital could be voted to one or more of
the beneficiaries. It is therefore
desirable for a letter of wishes to be placed with the Will, providing the
trustees with non-binding guidance as to how to administer the
trust.
·
The
surviving spouse could be one of the trustees and therefore have joint control
over the trust fund giving added security.
It may also be desirable to appoint a professional or other independent
trustee, particularly if one or more of the beneficiaries are also
trustees.
·
The
value of the trust fund would not form part of the estate of the second spouse
for IHT purposes. Provided the
trust’s value is below the IHT nil rate band it would not be subject to
IHT. Provided the trust’s value is
below the IHT nil rate band it would not be subject to IHT on the death of the
second spouse to die. Even if the
value of the fund were in excess of the nil rate band on winding up the trust,
the maximum currently chargeable is 6%, against the 40% full
rate.
·
The
trustees will be liable to IHT on the value of the trust fund every 10
years. There is also an exit charge
when distributions of capital are made.
On each 10 year anniversary of the creation of the trust, and when
capital distributions are made, the maximum rate of IHT on each occasion is
currently 6%.
·
A
discretionary trust needs to be properly administered. This involves registering the trust with
the Inland Revenue and filling in an annual Tax Return. The trustees should maintain trust
accounts and properly manage the trust property and
investments.
·
The
trust can include a one-half share of any property owned by the first spouse to
die (subject to note 8 below).
·
The
Trust can be made more flexible by replacing the assets with a debt. The Will gives the Trustees the power to
lend the trust assets back to the surviving spouse, interest free. The spouse can then own the house
outright and the debt is usually called in on second death.
·
Income
and Gains on assets held in the fund are chargeable at a higher rate of 40% and
payable by the trustees. However,
insofar as income is paid to a basic rate taxpayer, he or she can recover the
additional tax. A refund on Capital
Gains Tax will never be appropriate, although certain reliefs are available to
offset gains. For example trustees
can make gains of £4,900 in any one tax year before tax becomes
assessable.
·
Although
no one wants to pay tax, Capital Gains Tax is generally a “cheaper” tax than
IHT: CGT is only payable on any
increase in the value of assets in the trust from the date of death of the first
spouse to die until sold. IHT will
generally be payable on the whole capital value if the Discretionary Trust route
is not used and assets are passed to the surviving spouse
absolutely.
8.
Assets
which are held by a couple jointly will usually pass automatically to the
surviving spouse and not through the will of the first to die. Thus, if a couple wish to take tax
planning steps through their wills it is necessary to ensure that each spouse
has at least the value of the nil rate band in his or her sole name, or that any
joint property is held by the spouses as tenants in common. Assets held as tenants in common will
still be in the joint names of the spouses, but the share of the deceased spouse
will not pass automatically to the surviving spouse. Instead, it will devolve in accordance
with the provisions of any Will.
9.
It
is important to note that usually gifts made within seven years of death, in
excess of £3,000, to someone other than a spouse or charity will be taken into
account in determining the value of an individual’s estate for IHT
purposes. In effect, such gifts
reduce the amount of tax free giving that can be made on death. This does not apply to gifts between
husband and wife whenever made: again the spouse exemption rule
applies.
The
advice offered above is correct for the current 2007/2008 tax year: rates of tax
may change in the next Budget. Tax law may change at any time. The information given is not a
comprehensive examination of the present Inheritance Tax structure. Please contact us for more detailed
advice.
Pritchard
Joyce & Hinds
Tel:
020 8658 3922