A. What is it?
Inheritance Tax (“IHT”) is payable on taxable estates of deceased persons and on gifts made during a person’s lifetime. The amount below which an estate is not taxable (often called “the nil rate band”) has been increased each year but has now been set indefinitely as follows:-
Death between 6th April 2008 until 5 April 2009 - £312,000Death between 6th April 2009 until 5 April 2010 - £325,000Death on or after 6th April 2010 onwards - £325,000
In so far as an estate exceeds these amounts when a person dies inheritance tax will be levied at 40% on the value in excess of the values shown above but there are exemptions and reliefs which reduce or eliminate the tax depending on the circumstances.
The tax is payable upon a “transfer of value” which is defined to include:-
(i) The value of a tax payer’s estate at death;
(ii) The value of the estate will include an appropriate proportion of jointly owned property and may include any trust assets in which the deceased tax payer had an interest;
(iii) The value of gifts of assets made within the last seven years before death will be added back into the value of the estate for the purposes of assessing liability to tax.
There are a number of important exceptions from Inheritance Tax as follows (although this is not an exclusive list):-
B.1 Gifts during lifetime and on death between spouses and civil partners are exempt.A couple living together who are not married and are not civil partners could be well advised from an inheritance tax point of view to either get married or become registered civil partners so that should either die any assets inherited by the survivor will be free of inheritance tax. Otherwise inheritance tax will be payable and this can cause considerable difficulty for example where a house or a share in the house passes from one to the other without the benefit of the exemption afforded by marriage or civil partnership. It may be necessary to sell the house in order to pay the tax.
B.2 If a spouse or civil partner dies leaving a surviving spouse or civil partner but without using the nil rate band for giving property to other people i.e. not to the surviving spouse or civil partner, then when the surviving spouse or civil partner in turn dies a double nil rate band will be available. So for example if a husband dies leaving £450,000 to his widow and then his widow dies leaving an estate of £600,000 (comprising £450,000 inherited from her husband and £150,000 of her own savings) the widow’s estate will at current rates have a double nil rate band of £650,000 (i.e. £325,000 x 2) available so that none of her estate will be subject to inheritance tax. This relief is called “the transferable nil rate band” because it operates by the transfer of the benefit of the nil rate band of the first spouse or civil partner to die to the second spouse or civil partner to die.
B.3 Gifts to charities (whether registered with the Charity Commissioners or not) without limit. These gifts will be exempt whether made while the donor is alive or on death by Will. This can save inheritance tax dramatically. For example, a person has an estate of £450,000 and he has friends and relatives whom he would like to benefit but no surviving spouse or children of his own. His prospective inheritance tax charge at current rates will be £50,000. He does not want this tax charge to be paid. Instead he wants to benefit charities. He therefore provides in his Will that £325,000 will be distributed to his family and the rest will be distributed to charities. There will be no inheritance tax charge as a result.
B.4 Gifts to established political parties without limit. These gifts will be exempt whether made while the donor is alive or on death by Will
B.5 Up to £3,000 of gifts in any one financial year ie from 6th April to 5th April in the following year and if all of this is not given away in one year the balance can be added to next year’s gift allowance but an unused balance can only be carried forward for one year. After that it is lost. This allowance is made to each individual and so in the case of spouses or civil partners each of the spouses and each of the civil partners is entitled to this allowance making £6,000 per annum together.
It is possible to be quite creative in the use of this exemption. For example, in a case where parents have not used a previous years £3,000 tax exemption they could give away £12,000 (£6,000 each) on the last day of one tax year ie 5th April and a further £6,000 (again £3,000 each) on the next day which would be the start of the new tax year. This would make a total gift of £18,000 over a few days and this would represent a saving of £7,200 inheritance tax at current rates.
B.6 In addition to the £3,000 exemption up to £250 can be given to as many other people as a Donor wishes. The gift can be handed over in small amounts over a year but the total to that individual must not exceed £250 if it is to qualify for this exemption. Again, spouses and civil partners can each give away £250 to as many people as they wish in this way. This is a quite separate exemption from the exemption of £3,000 per annum and cannot be combined with the £3,000 exemption to give more than £250 to one person.
B.7 On the occasion of a marriage or civil partnership:-
Parents can give up to £5,000 each to their children including step children and adopted children; Grandparents can each give up to £2,500 to a grandchild; Anyone can give up to £1,000 to any person or relative as a wedding gift.
Again, this exemption can be used creatively. For example, two parents could each give £5,000 on the occasion of their child getting married making a total of £10,000 and if they have not previously used their annual allowance of £3,000 they could give a further £6,000 (£3,000 each) making a total of £16,000 representing a tax saving of £6,400 at present rates.
B.8 Dispositions for the maintenance, education or training of a child of either party to a marriage or civil partnership are exempt from IHT up until the child reaches 18 or ceases in full time education if later.
Dispositions can also be made to a child who is not a child of the Donor and is not in the care of his or her parent whilst the child is under 18. If the child is in the care of the Donor before the child is 18, exempt dispositions can continue until cessation of full time education.
Dispositions can also be exempt from IHT if they are reasonable provision for the care of maintenance of a dependent relative. A dependent relative for this purpose is:-
(a) a relative of the Donor or of his or her spouse or civil partner who is incapacitated by old age or infirmity from maintaining him or herself, or
(b) the Donor’s mother or father or his or her spouses or civil partner’s mother or father.
To be exempt in relation to dependent relatives, the disposition must be made for reasonable provision for the care or maintenance of the dependent relative.
B.9 Gifts made from income are exempt where they form part of the taxpayer’s normal expenditure. The expenditure must be part of the taxpayer’s regular habitual spending and come from income not capital. The taxpayer must be left with sufficient income to maintain his or her usual standard of living to which he or she is accustomed. Examples would be giving a child an allowance to help with education costs or paying school fees for a child or other relative or regularly helping a less well off individual to help maintain his or her lifestyle. Another example would be supplementing the income of an ageing parent. A further example would be paying life assurance premiums for a life policy held in trust for children to build up a fund which will help them pay IHT on the death of parents. This exemption is commonly called “normal expenditure out of income”.
C. Lifetime Giving
C.1 A gift made outright to another person or persons in excess of the threshold referred to at the beginning of this note (paragraph A) which is not exempt under one of the other exemptions mentioned above will become exempt if the Donor survives 7 years without retaining any benefit from the gift. If the Donor does not survive 7 years then inheritance tax will be payable. To obtain relief in this way it is essential that virtually no benefit is kept back or reserved from the gift. For example, a gift of a second home to children will not be effective if the Donor parent continues to visit or occupy the second home save that HMRC regard a stay in the home of no more than two weeks per annum without the Donee or no more than one month with the Donee as being sufficiently short as to be ignored for this purpose.
C.2 If the Donor’s giving does not exceed what is called the nil rate band, i.e. is below the threshold referred to at the beginning of this note (paragraph A), then no inheritance tax will be payable in respect of that gift whether or not the Donor survives 7 years but an amount of the Donor’s nil rate band to the extent of the gift will have been used so that if the person dies within 7 years it will reduce the amount of the nil rate band available to set off against the deceased person’s estate in calculating the inheritance tax liability.
It follows from these principles that a person and in the case of spouses or civil partners each of them can make a gift of an amount up to the nil rate band every 7 years free of IHT so long as no reservation out of the gift is kept back. This strategy could be used by wealthy individuals to dispose of large amounts of capital free of IHT either by the creation of trusts for their dependents or by direct gifts.
D. Business Property Relief
D.1 There is relief, indeed a most valuable relief, from inheritance tax of 100% of the value of a business where the business is the subject of a gift either on death or during a person’s lifetime in respect of: -
i) A business, or an interest in a business;
ii) unquoted shares (including alternative investment market shares and unlisted securities market shares);
iii) Securities of an unquoted Company (including an alternative investment market Company) of which the Donor had voting control by reference to any securities and unquoted shares in the Company owned by him.
The business property may be situate outside UK, e.g. shares of a French company.
D.2 This relief is subject to a number of conditions as follows:-
a) The business (or the Company’s business as the case may be) must not consist wholly or mainly of dealing in securities, stocks or shares or land or buildings.
b) The business must not consist wholly or mainly of making or holding investments unless, in the case of a Company, the Company is a holding Company of a trading Company. Buy to let businesses come into this category.
c) Normally at the time of the gift (or on death) the Company must not be in liquidation.
d) The business or shares must be owned for at least 2 years prior to the transfer ie gift or on death.
e) The relief is not given if a contract for sale of the business or shares has already been entered into at the time of the gift or on death.
f) The relief is restricted if the Company holds assets which are not used wholly and exclusively for the purpose of the business. This would exclude for example the value of surplus cash held by the Company.
D.3 There is also a 50% Business Property Relief (“BPR”) in certain other situations, the most common of which is land, buildings, plant or machinery used by a partnership in which the Donor was a partner or by a company of which the Donor had control.
D.4 If the gift of business assets takes place as a gift by a person in his lifetime who died within 7 years of making the gift and the Donee in turn gives away those business assets or sells them before the death of the Donor without replacing them, the Donor will lose the BPR on the original gift so that IHT may become payable after all on the original gift. Care needs therefore to be taken in relying on lifetime gifts where BPR is claimed.
D.5 Where business assets do not qualify for BPR such as the shares in a private property company, there will be IHT potentially on transfers of the shares or gifts.
D.6 There is a trap where shares are transferred so that the Donor ceases as a result of the gift to be the majority shareholder and becomes a minority shareholder. This is because the reduction in value resulting from the loss of a majority holding is much greater than the loss of a minority holding. For example, if a husband and wife own equally between them 80% of the shares and the other 20% are owned as to 10% each by their two children, a gift of the husband’s 40% holding will result in a loss to his estate of, say, 45% of the value of the company where as the gift of a 40% holding, if it were held as a minority holding (i.e. without the spouse’s holding) by the Donor, would result in a loss to the estate of the Donor of say 15% only of the value of the company (spouses shares are related property and so have to be valued together as a majority holding). It is important therefore to convert majority holdings to minority holdings by the making of the smallest possible transfer of shares.
D.6 There are schemes available whereby it is possible to buy an interest in business property which will have the benefit of BPR, i.e. by a portfolio of AIM shares. It is advisable to seek the advice of independent financial advisers for this.
E. Agriculture Relief
E.1 There is also a relief at a rate of 100% for inheritance tax in respect of in hand agricultural land and agricultural land which is subject to a tenancy granted on or after 1 September 1995. This relief is restricted to the agricultural value of agricultural property so for example it would not include the development value of any agricultural property. This has a particular importance in assessing the relief available for a farmhouse if the farmhouse is not of a character appropriate to the property. In other words, if the farmhouse is more than appropriate to the farming unit there would have to be an apportionment of the agricultural value and the remaining value and the relief would only apply to the agricultural value.
E.2 Agricultural land which does not qualify for 100% relief as having vacant possession or vacant possession being available within 24 months of the gift and is not agricultural land subject to a tenancy granted on or after 1st September 1995 will have relief at 50% of agricultural value.
The rules relating to agricultural relief are complex and specialist advice will be required to rely on it.
E.3 There are schemes available whereby it is possible to buy an interest in agricultural property which will have the benefit of agricultural property relief. It is advisable to seek the advice of independent financial advisers for this.
F. Saving IHT through life assurance
There are two situations (at least) where a form of life assurance can be very useful in making provision for inheritance tax.
F.1 The first situation arises where a gift has been made in excess of the nil rate band ie a gift of greater value than the thresholds mentioned above has been made and the Donor needs to survive 7 years in order to escape inheritance tax in relation to that gift. The risk of death within the 7 year period can be insured by a term insurance equal to the amount of the prospective liability to inheritance tax. At the end of the 7 year period the term insurance would cease because the Donor would have survived the necessary period to escape inheritance tax liability. During the 7 year period, the potential amount of IHT at risk reduces after 3 years from a 20% reduction in the fourth year to an 80% reduction in the seventh year (N.B. this is a reduction in the amount of IHT payable and not a reduction in the value of the gift). The amount of insurance cover required reduces accordingly.
F.2 The second kind of insurance would arise where a person with an estate which is going to be liable to inheritance tax in due course takes out a life insurance policy which is written in trust for the beneficiaries who would otherwise suffer the tax on the death of the estate owner. On the death of the estate owner the beneficiaries under the trust would receive the cash sum payable under the policy and with this they can discharge the liability or at least will have a contribution towards the liability to inheritance tax. The amount of the insurance is outside the estate of the estate owner and so does not count for inheritance tax purposes. This kind of policy would require an annual premium to be paid but if the premium is paid out of the income of the estate owner without the estate owner’s standard of living being reduced the normal expenditure out of income exemption referred to above (paragraph B.9) can be called in aid to cover the premium so that the payment of those premiums will not themselves be a transfer of value for inheritance tax purposes.
This is not so much a case of avoiding inheritance tax but of making provision for it in a relatively simple and painless way. This may well be preferable to giving away capital assets which may continue to be required by the Donor.
G. Gift and loan scheme
A commonly used life assurance based scheme is called a gift and loan scheme. In these cases the estate owner lends money to a trust set up for themselves and their family. The money lent to the trust is used by the trustees to invest in a life assurance bond. The life assurance bond provides an income. The investment growth on the bond will accrue for the benefit of the beneficiaries of the trust without any inheritance tax being payable on the death of the estate owner in respect of that growth. The “income” drawn from the trust is paid to the estate owner and is treated as repayment of the loan. So long as the loan repayments which constitute the “income” do not exceed 5% of the initial investment in the bond per annum there will be no income tax to pay.
H. Discounted gift scheme
These schemes are popular particularly where an estate owner wishes to reduce the value of his or her estate immediately without waiting for the 7 year period to expire. Basically, the scheme operates by placing the chosen sum of money into a trust which is invested in a life assurance bond. At the same time the estate owner chooses an income which the estate owner wishes to receive for the rest of his or her life derived from the lump sum gift into trust. That income will be paid from the trust fund which is invested in a life assurance bond. The essential element of the scheme is that the value of the chosen income ie the cost of providing that income (which is rather like an annuity) immediately reduces the value of the trust fund and hence the value of what has been given away. Upon the death of the estate owner the value of that entitlement to an income for life will be nil. The remainder of the fund not required for the provision of the income to the estate owner will pass to the beneficiaries under the trust and after seven years will fall outside the estate owner’s estate.
An example of how this scheme operates is as follows:-
An estate owner aged 70 has an estate valued at £550,000. The estate owner knows that there will be inheritance tax payable on his estate but he needs that estate to live on. He puts £250,000 of the estate into a discounted gift scheme requesting at the same time an income of £1,000 per month. The value of providing that income is assessed at £125,000 and so the value of the gift is effectively reduced to £125,000. Thus if the estate owner dies at any time within 7 years of making the gift his estate is still treated as reduced by £125,000. His estate will in fact be treated as £425,000 instead of £550,000. If the estate owner survives the full 7 years then his estate will be treated as being £300,000 and at current rates no inheritance tax will be payable whereas if he had done nothing inheritance tax would have been £90,000. Even if the estate owner dies immediately after setting up the scheme, he will have saved £50,000 of IHT by reason of the reduction in the value of his estate of £125,000. These schemes are available from many life assurance companies.
I.1 The inheritance tax rules relating to trusts are very complex and in this section we are highlighting just four aspects which may be useful in helping to mitigate the impact of inheritance tax. Under the major changes to rules introduced by the Finance Act 2006 inheritance tax is imposed on all trusts whenever created; first of all when they are set up, secondly every ten years thereafter and thirdly whenever property leaves the trust and passes to a beneficiary. Although the rate of inheritance tax will be a maximum of 6% for the second and third of those stages (at current rates) the rate on creation of the trust will be at 20% if the estate owner is alive or 40% if the trust is set up through a person’s Will.
These tax rates make trusts less attractive than previously but there are still four areas where they may still be beneficial:-
I.2 The Small Trust By this is meant a trust which is set up with a fund of less than the nil rate band (currently £325,000). An estate owner who has not already used up his or her nil rate band may set up a trust for grandchildren for example; if the initial gift is e.g. £100,000 that will not attract inheritance tax when it is set up and if it stays within the nil rate band it will not attract inheritance tax when distributed nor will it attract inheritance tax on the ten year anniversaries if it is kept going that long.
1.3 Trusts for disabled persons There are special rules for trusts which are set up for disabled persons whereby the trust will not suffer the ten year anniversary charge and if the trust is set up during the estate owner’s lifetime the setting up of the trust will be a potentially exempt transfer and thus not give rise to any inheritance tax charge unless the estate owner dies within seven years. For the purpose of these rules a disabled person is someone who is:-
a) incapable by reason of mental disorder of administering his property or managing his own affairs, or;
b) in receipt of an attendance allowance (for those over 65) or is in receipt of disability living allowance (for those under 65) by virtue of entitlement to the care component at the highest or middle rate.
Under these trusts the interest of the disabled person can be an entitlement to income or it can be discretionary.
In addition to the special treatment for inheritance tax it may be possible to set up the trust for a disabled beneficiary in such a way that it qualifies also for the special treatment of trusts for vulnerable beneficiaries’ for income and capital gains tax purposes. The rules for “vulnerable beneficiary” trusts are different to those for disabled beneficiary trusts but it is possible to comply with both and so gain the special tax treatment afforded by both sets of rules for income tax, capital gains and inheritance tax.
I.4 Trust for bereaved minors If a parent makes a Will leaving a trust fund for his or her child at age 18 then so long as the child becomes absolutely entitled to the fund at age 18 and income from the fund is to be applied for the child if at all in the meantime, there will be no ten year anniversary charge nor any charge on the minor becoming 18 years of age. This provision does not apply to trusts of this kind created by a person during his or her lifetime. That would be subject to the IHT taxation rules referred to at I.1 above.
I.5 Trusts for bereaved children aged 18-25 If a parent makes a Will leaving a trust fund for his or her child at an age between 18 and 25 years then so long as the child becomes absolutely entitled to the fund at an age between 18 and 25 and income from the fund is to be applied for the child if at all in the meantime or accumulated there will be no ten yearly charge to inheritance tax and the inheritance tax charge when the child reaches the specified age is calculated by reference to a formula which at current rates cannot exceed 4.2%.
J. A person’s home
A person’s home is often the most valuable asset which an individual or a married couple or civil partners have and furthermore its value will often exceed the amount of the nil rate band for IHT purposes (£325,000). Although it is a valuable asset, it cannot ordinarily be wholly or partly given away to save IHT because the owners need it to live in so long as they are alive.
J.1 The special relief known as the “transferable nil rate band” referred to at B.2 above, has been available since 2007 and in many cases the use of this relief will enable a married couple or civil partnership to pass their home to children or others free of IHT. Thus, if the home is worth say £450,000 it will exceed the single nil rate band of £325,000 and this used to be a problem on the death of the second of the couple to die in that only one nil rate band was available to set against the value of the house, the nil rate band of the first to die having been unused because the transfer to the second of the couple on the death of the first was exempt from IHT in any event. Now, by taking advantage of the transferable nil rate band, the nil rate band of the first to die, if unused at that time, can be transferred to the estate of the second of the couple to die on the death of that second person. For example, taking the case of the house worth £450,000 on the death of the second of the couple to die, the nil rate band applicable to both the first and the second of the couple can be used, i.e. £325,000 plus £325,000 making £650,000 which will more than cover the whole value of the home.
J.2 It is not possible (for IHT purposes) for an individual or a couple to give away the whole or part of their home and go on living in it because of the rule that if a donor retains possession or benefit of an assets after giving it away, that gift does not count for IHT purposes until possession or benefit have been given up. However, there are some situations where sharing the home will be effective for IHT purposes.
One of those situations is where a share or shares of the home are given to a person or persons living at the home. For example, a couple may give a quarter share of the home to their live in child or to a live in aged parent. It is important that the couple bear at least a share of the expenses of the home equal to the proportion of the home which they retain. The disadvantage of this arrangement is that if the Donee later wishes to leave the home, the Donee’s share will have to be bought back by the couple at market value in order to prevent a retention of benefit arising for IHT purposes. This situation might be particularly suitable for a single person.
J.3 Prior to the introduction of the transferable nil rate band in 2007, a scheme commonly used to take advantage of the nil rate band of the first of a couple to die (and not waste it) was a somewhat artificial creation of a trust by will, whereby a legacy equal to the amount of the available nil rate band of a testator was bequeathed to a discretionary trust which was effectively the same as a small trust described at I.2 above. The legacy was not actually paid to the trust but remained as a debt owed to the trust and was charged on the home. Then, on the death of the second to die of the couple, the debt could be set against the estate of the second to die so reducing his or her estate by the equivalent of the nil rate band not used on the first death. When this was combined with the nil rate band of the second die, reduction in the estate for IHT purposes was equal to two nil rate bands.
This debt scheme is now largely redundant since the transferable nil rate band became available but the debt scheme could still be useful in a number of situations:-
J.3.1 Where the survivor of a married couple or civil partnership remarries or enters into a new civil partnership, there will be three nil rate bands available to the new couple. One from the deceased spouse or civil partner and one each for the new couple. The survivor of the married couple or civil partnership can, by will, set up a debt scheme which will use the transferable nil rate band from the deceased spouse or partner and the remaining two nil rate bands will be used when his or her new partner dies.
J.3.2 The debt scheme can also be used on the death of the first to die of a couple to set up a nil rate band discretionary trust which will be ring-fenced and kept out of the reckoning when the survivor is assessed for care home funding by the local authority.
K. Cohabiting couples
K.1 An unmarried couple who are not in a civil partnership will be treated for IHT purposes quite separately and will not enjoy the exemption for transfers between married couples or civil partners. It follows that the transferable nil rate band will not be available to them either. They are at disadvantage from the IHT point of view. For example, A and B live together and A owns the home worth £400,000. A dies leaving the house to B. IHT on the house will be £30,000 at current rates and if B cannot raise this the house may have to be sold in order to pay the IHT.
If the house is worth more than twice the nil rate band, IHT will have to be paid on the death of A even if it is owned jointly. From the IHT point of view, the best advice is for A and B to get married or enter into a civil partnership, where, in the situation described above no IHT would be payable.
More generally, cohabiting couples should, other factors being ignored, equalise their estates so that whoever dies first, the IHT is kept as low as possible. For example, if A has an estate of £400,000 and B has an estate of £200,000 and A dies first, IHT will be payable of £30,000, but if A and B had equalised their estates no IHT would be payable on A’s death.
K.2 If the cohabitees have children, they may still want to leave their estate for the benefit of the surviving partner. This can be done by leaving a life interest, i.e. the use of assets or the income from those assets, and then on the death of the second partner the estate passes under the trust to the children. The partner’s life interest would be what is called “an immediate post death interest” and outside the IHT regime described in paragraph I.1 so that IHT would arise on the first and second deaths but not otherwise.
K.3 A more complex arrangement where a testator wishes to set up a fund which would be available immediately for the children and also for the surviving partner involves the testator making a will which leaves a legacy equal to the nil rate band to what is known as a pilot trust (se below) which will be discretionary in nature where both children and surviving partner are beneficiaries. The residue of the estate is bequeathed on a life interest trust for the benefit of the surviving partner and on his or her death passes to the children absolutely.
The pilot trust is a discretionary trust set up by the testator in his lifetime with a nominal amount of say £10. The advantage of it is that the funds in it will never be aggregated for IHT purposes with the funds held for the benefit of the surviving partner for life. The effect of that is that IHT in relation to the discretionary pilot trust will be either nil or at least much less than if it was aggregated with the life interest trust under the Will.
L. Second marriages
L.1 It is often the case that one or both parties to a second marriage have children by a previous marriage and naturally they, the parties to the second marriage, may wish to ensure that ultimately their respective estates pass to their children by the first marriage upon the death of both parties to the second marriage. The best way to do this from the IHT point of view is for the parties to make Wills whereby they each leave their estates on trust for the survivor for life so that the survivor will have the benefit of the assets (free of IHT) during his or her life and upon the second death the assets under the trust will pass to the children. For IHT purposes the interest of the surviving spouse will be what is called in the Financial Act 2006 an immediate post death interest. This will be an exception to the IHT regime described in paragraph I.1 above and, because it is in favour of a spouse, it will be free of not only the 10 year periodic and exit charges but also free of IHT on the death of the first spouse.
L.2 The debt scheme may also be useful to ensure in appropriate circumstances that three nil rate bands are in effect utilised as described in paragraph J.3.1.
M. Health Warning
The notes above are intended to be helpful in considering options for mitigating inheritance tax but because the rules relating to inheritance tax are so complex these notes are necessarily an indicator only of ways in each case. They are not intended as a comprehensive guide. It is recommended that further advice is taken in any but the simplest case. Furthermore, these notes do not deal with the impact of other taxes such as capital gains tax, income tax and stamp duty land tax. Further advice should be taken in relation to the impact of other taxes in respect of any particular proposal for mitigation of inheritance tax.