When someone dies, the first £325,000 of their estate is exempt from Inheritance Tax (IHT). If they don’t use all of this allowance, it can be transferred to their spouse’s or civil partner’s estate in due course. This is known as the transferable nil rate band.
This increases the exempt amount for the partner’s estate when they die, meaning they could have a potential IHT threshold of up to £650,000.
The relevant dates
The transfer of the nil rate band can be applied for if the remaining spouse or civil partner died on or after 9 October 2007.
In respect of civil partnerships, the transferable nil rate band can be claimed only if the first partner died on or after 5 December 2005, the date that the Civil Partnership Act became law.
How much nil rate band is transferable?
Where the first spouse or partner to die leaves all of their assets to the remaining spouse or civil partner, no IHT is payable, so the entire £325,000 can be passed to the remaining spouse, subject to the deduction of any non-exempt gifts made during the previous seven years.
How to apply to transfer the nil rate band
Two forms need to be sent to HM Revenue & Customs (HMRC). The first is the standard IHT form, while the second is the application to transfer the unused allowance. There are two options for this second form.
Form IHT217 Claim to Transfer Unused Nil Rate Bank for Excepted Estates
This form should be used when the estate of the first person to die is an excepted estate, ie. IHT was not payable, for example where the estate is worth less than £325,000 or where the assets are left to charity.
Form IHT402 Claim to Transfer Unused Nil Rate Band
Where some of the £325,000 IHT allowance was used by the estate of the first spouse to die, then only the remaining balance can be transferred to benefit the second estate. Other financial information will need to be included on the form, for example gifts made within the last seven years and pension details.
Both forms need to be signed by the estate Executor or Administrator and sent to HMRC together with the main IHT form, IHT400.
A probate lawyer will be able to work out the correct figures to be included on the form, which isn’t always straightforward, for example in the case of disposal of cash or assets by the deceased prior to their death or where gifts are made to charities, which could potentially reduce IHT liability.
To speak to one of our probate specialists, call legalmatters on 01243 216900 or email us at firstname.lastname@example.org.
When you’re expecting a baby there’s a long list of things to do to get ready. Making a Will isn’t usually at the top of the list, and for many people it isn’t even something they think about at all. But in reality, it’s an important job that could seriously impact your family’s future.
Nobody wants to think about a situation in which children lose their parents, but covering every eventuality means that once you have children you can relax and enjoy life safe in the knowledge that you have drawn up plans for their future care should the worst happen.
When parents don’t make a Will
If anything happens to you and you haven’t made a Will, then those left behind will not necessarily know what your wishes were with regard to your children’s upbringing.
The authorities will have the right to place your children with the guardian they decide upon, and there could be a delay in finalising this, which could be even more unsettling for all involved.
Failing to plan and talk things over with family members could also cause disagreement between them.
As far as financial provision is concerned, this will be governed by the Rules of Intestacy, and you will have lost the opportunity to appoint your choice of trustees to look after the money you leave and decide how it should best be spent.
Writing your Will when you’re a parent
Writing a Will allows you to clearly set out who you would like to care for your children should you die. You can also make financial provision for your children, choosing the age at which you would like them to inherit any money you leave them. For example, you may decide that you don’t want them to be given a large sum of money at 18, and that you would prefer them to inherit it when they are older and more settled in life.
You will appoint trustees to administer the money until that time and leave instructions for how they can use it for your children as they grow up, for example a private education or money towards the purchase of a home.
The trustees will also be able to pay money to your children’s guardian, for everyday expenditure such as food, clothing and school expenses.
Choose people whom you trust implicitly and whom you believe are capable of carrying out your wishes as well as looking after the money that you leave. This fund will eventually be inherited by your children so it is important that it is properly managed.
If you would like to talk to one of our expert wills and trusts lawyers, call legalmatters on 01243 216900 or email us at email@example.com.
When someone is classed as being domiciled outside of the UK, Inheritance Tax will only be payable on their UK assets.
A person’s domicile is usually their home or permanent place of residence.
However some people may claim the place that their father was born as their domicile, or if their parents were unmarried, then the place of their mother’s birth.
Even if someone was born, educated and works in the UK, it is still possible for them to be a so-called ‘non-dom’, ie. not domiciled in the UK. There are rules requiring an annual remittance to be paid to HMRC each year from the seventh year of residency onwards, but by way of benefit non-doms can avoid paying tax on foreign income or gains, provided the money is not brought to the UK.
Inheritance Tax benefits for non-doms
This benefit also extends to UK Inheritance Tax liability. Property outside of the UK can be excluded when calculating Inheritance Tax liability if the deceased was classed as a non-dom at the time of their death. For those classed as domiciled in the UK, Inheritance Tax is payable on all assets, wherever in the world they may be situated.
Property excluded from Inheritance Tax payments
- Property situated overseas
- Property situated overseas and held in trust where the settlor was not domiciled in the UK
- Foreign currency bank accounts
- British government securities, national savings and War savings certificates
How to benefit from non-dom status
If you have non-dom status, then by setting up an excluded property trust such as a discretionary off-shore trust can protect your assets from UK Inheritance Tax.
This can be beneficial for those who may have lived in the UK for more than 15 out of the previous 20 years, as it will mean that they are considered as UK-domiciled.
By setting up an excluded property trust, assets will not attract Inheritance Tax even if the settlor then acquires UK domicile.
To talk to one of our experts about tax planning, call legalmatters on 01243 216900 or email us at firstname.lastname@example.org.
When making a Will, it is possible to leave someone a life interest in your property or assets.
It may be more prudent in certain circumstances to leave your spouse or partner a life interest in your assets rather than giving them outright ownership.
In particular this can be advantageous if you want to make sure any children you have receive something in the future.
Possible problems in leaving assets outright
Married couples often make duplicate Wills, leaving everything to each other and then after both their deaths, to their children.
The problem with this is that after the death of the first parent, unforeseen circumstances could mean that either the Will becomes invalid or the money in the estate is spent before it can be inherited.
For example, if the remaining parent remarries, any previous Will automatically becomes invalid. If the parent fails to make a new Will, their assets will pass under the Rules of Intestacy, with the majority of the estate going to the new spouse, who is then free to leave it elsewhere in their own Will. Even if they intend to honour an intention to pass the money to the children, it may be spent, for example on care home fees.
Similarly, if a new Will is written, any previous Will is superseded. This could mean that after the death of the first parent, the remaining parent is free to leave the whole estate elsewhere and not to the children.
Finally, if the remaining parent moves to a care home, then assets in the estate can be swallowed up in fees. At present the local authority will only step in to assist with payments when the patient’s total worth falls below £23,250.
How a life interest works
By leaving someone a life interest, you can be sure that ultimately your assets will pass to those you choose.
For example, you can leave your spouse a life interest in your home, which means they can live there as long as they want, but once they have died or left, your share will pass in accordance with your Will and cannot be given elsewhere.
This also prevents your share being used to pay their care home fees.
Similarly you can leave a life interest in other assets, including cash and shares. This allows your spouse access to money and interest for living expenses, but means that the money remaining after their death will go to your children, or whoever you have chosen.
If you would like to discuss whether leaving a life interest in your Will might be suitable for you, call legalmatters on 01243 216900 or email us at email@example.com.
Giving gifts of cash or valuables before your death means that you can see your loved ones benefit from your generosity. But make sure you understand the Inheritance Tax situation before you give.
Inheritance Tax rules are complex, particularly when it comes to working out what might be due on gifts given before death. Research by Brewin Dolphin found that only 12% of those questioned knew what the annual tax-free gift threshold is.
If money or a valuable item (a lifetime gift) is given within the seven years before someone dies, then there is a possibility that Inheritance Tax will be due if the donor has given away more than the tax threshold amount of £325,000. In that event it would be the recipient of the gift who would be asked to pay the tax.
How much can you give tax-free?
An individual is permitted to give £3,000 per year, with no tax implications. This allowance can be carried over to the following year if it isn’t used, but it cannot be carried over for more than one year.
Amounts above £3,000 are added to the value of the estate if they were given within seven years of the donor’s death. If the total value of the estate exceeds £325,000, Inheritance Tax may be payable.
What is a lifetime gift?
As well as cash, any valuable item constitutes a gift and the value is added to the estate total for the purposes of calculating Inheritance Tax. This includes selling a property at below market value, for example to your children. In that event, the amount of the reduction is added to the value of the estate.
As well as the tax-free £3,000 per year, there are a number of other exemptions allowing you to gift money without needing to consider Inheritance Tax:
- Any money given to a spouse or civil partner;
- Single gifts of up to £250;
- Donations made to registered charities or political parties;
- £1,000 given as a wedding gift, rising to £2,500 for a grandchild or £5,000 for a child;
- Money given to an elderly or infirm relative or a child who is under 18 to support them;
- Gifts from surplus income, for example for birthdays or Christmas, providing it does not affect your standard of living.
The rules can be complicated and it is always worth seeking professional advice before distributing money.
To speak to someone about gifting, call one of our specialist team at legalmatters, on 01243 216900 or email us at firstname.lastname@example.org.
There are certain restrictions as to who can make a Will, including age and capacity.
In England and Wales you generally need to be 18 before you can make a Will. It is always advisable to make a Will once you reach that age, even if you feel you might not have anything much to leave.
You can include your wishes for social media accounts as well as leave gifts of items other than cash which you may want friends or family members to receive from you.
If you own your own home or are involved in a business you should make sure you have a Will.
Those under 18 may be allowed to make a Will if they are in the armed forces on active duty or they are sailors at sea. A law introduced during the First World War allows young people in these circumstances to make a Privileged Will allowing them to leave their possessions as they wish.
Other restrictions on making a Will
You are required to have ‘testamentary capacity’ to make a Will. This means that you must fully understand the nature of the document and its effect.
You also need to know the extent of the property you own.
Finally, you need to be able to understand the moral obligations you should consider, for example whether you have any dependents who are more in need of financial help than others, through illness or incapacity or because they themselves have dependents.
When should you make a Will?
You should make a Will straight away if you don’t already have one, and plan to review it regularly, particularly as life changes.
You may want to have your Will rewritten on the arrival of children or grandchildren or if you get divorced.
If you marry, any Will you have will become invalid and you will need a new one or your estate would pass under the Rules of Intestacy.
If you own a business or are in a partnership you should have a Will drawn up taking this into account.
If you are co-habiting then making a Will ensures that you can leave that person something if you wish. If you die without making provision for them, it is possible they will receive nothing.
A recent survey found that three-quarters of adults questioned did not have a Will. Whatever your circumstances, if you clearly set out your wishes it not only means that the administration process will be easier for people, but you can be assured that your beneficiaries will receive exactly what you want them to have.
To speak to someone about writing your Will, call one of our specialist team at legalmatters, on 01243 216900 or email us at email@example.com.
If you believe you are entitled to something from someone’s Will, you may be able to make a claim, but beware of the time limits.
If a relative dies and you have not inherited what you feel you have a right to, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act).
It may be that you believe you were left less than you are entitled to, that you have been left nothing or that because there is no Will you have not been made a beneficiary.
If you can show that you are entitled to ‘reasonable financial provision’ then you can ask the court to grant you a share of the estate.
How long do you have to make a claim?
The Act has a strict time limit for making a claim of six months from the date of the Grant of Probate or Letters of Administration.
In very exceptional circumstances this may be extended to allow a late claim, but as a rule you must stick to the six month deadline.
Who is entitled to claim?
A spouse or civil partner may make a claim under the Act as well as a former spouse or civil partner where they have not remarried, a person living in the same household as the deceased for at least two years prior to the date of death, a child of the deceased, anyone who was treated as a child of the family such as stepchildren and anyone who was being financially maintained by the deceased.
What will the court consider?
The court will look at the applicant’s financial resources and needs as well as their future needs. This could include whether they are employed, able to work, whether they have a dependent family or are a carer.
The physical and mental capacity of the applicant will be considered at along with the obligations the deceased may have had to them.
The financial resources and needs of the beneficiaries under the Will is also taken into account together with the size of the estate.
Other factors such as the applicant’s behaviour towards the deceased will also carry weight.
The court will not simply ignore the wishes of the deceased, so it is important to put together as persuasive a case as possible.
It is also essential not to miss the six-month deadline for making the claim.
If you would like to speak to our expert probate team, ring us on 01243 216900 or email us at firstname.lastname@example.org.
If you’ve been left money or a share in someone’s estate, you may be wondering what liabilities you have. Do you need to pay tax on the money, and who is responsible for clearing any debts the deceased may have left?
After someone dies, their personal representative is responsible for winding up the estate. It is their job to collect in all the assets, sell any property and pay debts, including tax liabilities. Once this has been done, they will then distribute the funds in accordance with the Will or, if no Will was made, under the rules of intestacy.
Who is responsible for making payments from an estate?
If a Will was made, this will usually name a personal representative, known as an executor. If there was no Will, the Probate Registry will appoint an administrator.
This is the person who will be responsible for gathering in the money and settling any bills.
Debts are payable in a set order.
- Secured debts such as a mortgage
- Reasonable funeral costs
- Estate administration expenses
- Payments due to employees
- Unsecured debts
Estate administration expenses
These are usually the main expenses to be dealt with when winding up an estate and include the costs incurred by the personal representative, such as probate fees, estate agency and valuation fees, Income Tax and Inheritance Tax.
Making payments to beneficiaries
Once all of the debts have been paid, then the estate can be distributed to the beneficiaries. Personal possessions will be passed in accordance with the terms of any Will.
Cash payments are made in a strict order of priority.
Firstly, specified gifts of money are made to named beneficiaries.
After these have been paid, the residue is divided in accordance with the terms of the Will. A residual beneficiary can request a copy of the estate accounts, which will set out all income and expenses.
The amount of any taxes and other debts will therefore reduce the money paid to the residuary beneficiaries, as they are the last in the queue, after any specific cash legacies.
For help with administering an estate, call the probate experts at legalmatters on 01243 216900 or email us at email@example.com.
Winding up the estate of a deceased person can take many months, particularly if it is less than straightforward.
Following someone’s death, it takes an average six to nine months to finalise their affairs and distribute funds to the beneficiaries. The process can be complicated and frequently takes longer than this if difficulties arise.
A personal representative, either an executor or administrator (if there is no Will), has the job of listing in all the deceased’s assets and valuing them. Once this has been done, they need to work out how much tax is owed.
This needs to be paid to HMRC, who will issue a receipt, allowing the executor to apply to the Probate Registry for Grant of Probate.
The Registry will go through the paperwork and issue the Grant allowing the executor to deal with the estate’s assets. This involves selling or transferring everything that the deceased owned.
HMRC can take a long time to agree the information in respect of tax liability. The personal representative will then need to arrange for payment. If this is not possible, they may be able to request that HMRC provide a form allowing them to apply for a Grant on Credit.
The relevant receipt then needs to be forwarded to the Probate Registry along with the application and supporting paperwork, including the Will itself.
If the Probate Registry has any doubts about the validity of the Will, for example if it does not appear to have been witnessed properly, it will delay granting probate until it is satisfied.
This may involve providing documentation from the witnesses and whoever drew up the Will.
Once the Grant has been issued, the executor needs to gather in the assets by writing to banks, building societies, insurance companies etc, sending a certified copy of the Grant of Probate and asking for accounts and policies to be closed and a cheque for monies due to be sent to them.
One of the most time-consuming parts of winding up most estates is the house sale. The property will need to be cleared before the completion date, and a sale alone will usually take two or three months and frequently much longer.
The personal representative is responsible for locating all the beneficiaries, which can take time if the Will was made many years previously and people have dispersed.
If a Will contains any ambiguity or family members feel that they were due money which in fact has not been left to them, disputes may arise which will delay distribution of the estate funds, in serious cases for years.
If you need help to administer an estate professionally and without undue delay, call one of our experts at legalmatters. Call us on 01243 216900 or email us at firstname.lastname@example.org.
A recent case involving a cohabiting couple has highlighted the need for a robust Will after a man died and the judge awarded his surviving partner more than he intended.
There has been a rise in disputes between family members over inheritance. And a recent case has shown that a cohabiting partner might have a greater claim to your estate than you realise.
What happened in this case?
While the ‘common law’ husband or wife doesn’t actually exist in law, living with someone could entitle them to a substantial proportion of their deceased partner’s estate. Even if this goes against the terms of their partner’s Will.
Mr Hodge and Ms Thompson lived together for over 40 years. However, just before he died, Mr Hodge created a Will leaving nothing to his partner. In a letter he explained that he did this because he believed Ms Thompson would need to move into residential care after his death, and that she had her own finances to cover this cost.
However, Ms Thompson was unhappy with this and contested the Will. Her claim was successful as the judge found that she did not need to move into residential care and could live independently, but did not have the financial means to do so. As such, Ms Thompson was awarded a home worth £225,000, as well as a further £28,800 to pay for adaptions to the cottage, and an additional lump sum of £116,000 to help supplement her limited income.
This isn’t a one-off
In this case, the named beneficiaries will still inherit a sizeable amount as the estate was worth £1.5 million. Furthermore, the fact that Mr Hodge’s reasons for not taking care of his longstanding partner were unfounded contributed to the judge’s decision. But this is not the first time a Will has been overturned in favour of a cohabitee.
Indeed, it is possible for a ‘common law’ partner to bring a claim under the Inheritance Act after just two years of cohabitation if they rely on financial provision from the estate to carry on living the lifestyle they have become used to (however luxurious that lifestyle might be).
So, money and property can be given to someone other than the deceased’s intended beneficiaries.
The death of a loved one is a difficult time, and, where there are disputes about a Will, the stress and upset can make it even harder. As such, taking professional advice is crucial if you want to protect your Will against any potential challenge. With disagreements over money or property devastating for those left behind, and often very expensive to resolve, a properly prepared and considered Will should be a priority.
To make sure your Estate is passed on in line with your wishes, or to dispute a Will, speak to one of our expert team by calling legalmatters on 01243 216900 or email us at email@example.com.