Q&As

H&W own their home as tenants in common. What are the IHT implications of transferring it into a trust of which they are the life tenants, with remainder to their children on the death of the surviving spouse?

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Published on LexisPSL on 11/01/2018

The following Private Client Q&A provides comprehensive and up to date legal information covering:

H&W own their home as tenants in common. What are the IHT implications of transferring it into a trust of which they are the life tenants, with remainder to their children on the death of the surviving spouse?
Relevant property for inheritance tax
Residence nil rate band
Qualifying interest in possession for inheritance tax

Where a property is held as tenants in common, it passes by will or intestacy rather than automatically by survivorship to the co-owner. However, there is flexibility as to succession, in that a tenancy in common enables the first co-owner to die to leave his or her share to someone other than their surviving co-owner, ie a child of the deceased.

It is important to consider the tax implications in advance of implementing any trust or succession planning.

Relevant property for inheritance tax

The term 'relevant property' defines a category of trust property which is subject to a special regime for IHT. When taking into consideration the IHT treatment of trust, the property will fall into two broad categories:

•
beneficial entitlement—trust property is subject to IHT as if it belonged outright to the beneficiary
•
relevant property—has an independent tax life. Once it is effectively removed from the settlor's estate, it is not taxed as part of any other individual's estate

The IHT position is not necessarily fixed from the beginning and shares of property within the trust may be subject to different IHT treatments depending on the entitlement of the beneficiaries.

Over the life of a trust, the IHT treatment of part, or all, of the fund may change if the beneficiaries' interests change, either through the course of events, or in accordance with the exercise of the trustees'

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