Tuesday 24 January 2012

Any tax breaks from Nil rate band trusts?

In 2007 the Inheritance Tax (IHT) rules were changed making nil-rate band trusts (NRBT) less advantageous. If your will still includes one, should you change it to remove the trust or does it still have some tax advantages?

Outdated clauses For a long time NRBTs were considered an essential IHT planning tool for married couples. After one spouse died, they allowed the survivor to use the assets of the deceased, including any income they yielded, without them being treated as part of their estate for IHT. 

In 2007 the IHT rules were changed to allow a similar result to be achieved by different means but more easily: any unused nil-rate band of the first spouse to die can now be added to  the survivor's to increase the value of the estate escaping IHT. Many couples have now changed their wills to remove NRBTs. Is this a good move?

Saving time and costs Deleting an NRBT clause from a will means there is no trust to administer during the life of the remaining spouse saving on administration and tax return preparation costs. This appears to be a good enough reason for getting rid of the clause but there is no need to spend money on lawyer's bills for drawing up new wills yet.

Tip Gather your beneficiaries around, explain to them that you still have NRBT in your will but they, and your surviving spouse, can  decide whether it is worth keeping after you've gone. If they decide to get rid of it, they can sign a deed of variation abolishing the trust.

Trap If the beneficiaries include someone incapable of signing away their rights eg a minor, a deed of variation may not be possible unless the NRBT includes an option to distribute (appoint) the trust to one of the named beneficiaries. This has the effect that that the trust can be reversed by the trustees transferring all its assets to the surviving spouse within two years of the death of the first spouse. So what advantages does a NRBT have?

Having it every way With a NRBT you can hedge your bets. It may not be helpful in your present situation but your personal and financial situation may change as may that of your spouse. If you have a NRBT, leave it alone. It may even offer IHT or other financial benefits:

1) Where the growth in asset values in the trust exceeds the increase in the nil-rate band; (Remember the nil-rate band has been frozen for five years.)

Example - part 1
Wilf died in 2006  leaving an estate worth £500,000. He left everything to his wife Mary. Transfers between spouses of the same domicile are IHT-exempt, so no tax was payable on his death. It also means that John's £300,000 NRB was unused. When Mary died in June 2007 her estate, which of course included most of John's wealth, was worth £700,000. After knocking off her NRB of £312,000 it left £388,000 taxable at 40%, i.e. £155,500 due to the HMRC.
Example - part 2
Had Wilf transferred £300,000 into a discretionary trust of which Mary was a beneficiary, and the balance of his estate (£200,000) directly to her, there would still have been no IHT to pay (see calculation below). The difference is that when Mary died her estate would be taxed on much less than in the first example because HMRC ignore money in an NRB trust. If her estate was worth £400,000, with the NRB at £312,000, this leaves £88,000, on which the IHT would be £35,200.


Wilf’s estate at death £500,000
Less: gift to his spouse Mary £200,000
Net estate for IHT (2007) £300,000
Nil-rate band £300,000


2) If you have been married more than once particularly where you have children from a previous marriage.

It can be tax advantageous to include a provision in your will for an NRBT where you have been married more than once.

Example


Wilf and Mary marry in 1978 and have a son in 1982. In 1988 Wilf dies. His estate is valued at £400,000 which he leaves  entirely to Mary. Under the inter spouse gift exemption rule, no IHT is payable on his estate leaving his nil rate band unused.

Some years later Mary marries Xerxes and they have two daughters. Xerxes dies in 2006 leaving all his estate, worth £850,000 to Mary. Again the inter spouse exemption applies to ensure no IHT was payable on this. Therefore Xerxes’s nil rate band is unused.

When Mary dies in 2011 her executors claim the unused nil rate band from previous marriages, but this is limited to 100% of the nil rate band at the time of her death, i.e. £325,000. Her estate is entitled to this plus her own nil rate band of £325,000, meaning that overall £650,000 of her estate was IHT-free.

Had Wilf and Xerxes both set up NRBTs in their wills for their children and Mary more of their estates would have been IHT-free: 

Nil rate band when Wilf died      £110,000
Nil rate band when Xerxes died £275,000
Combined IHT-free amount       £385,000

Plus
Marys nil rate band                   £325,000

Total nilrate bands used           £710,000  

3) To protect the matrimonial home from local authority charges should your spouse need to go into a nursing home.







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