Trusts and Inheritance Tax

Incidence and burden ― overseas issues

Produced by Tolley
  • 23 Mar 2022 10:53

The following Trusts and Inheritance Tax guidance note Produced by Tolley provides comprehensive and up to date tax information covering:

  • Incidence and burden ― overseas issues
  • Burden of IHT
  • IHT on the estate of a deceased person - the general rule
  • IHT on lifetime gifts
  • Burden of foreign tax
  • Foreign tax - the general rule
  • Foreign tax - contrary intention shown in the Will
  • Liability for foreign tax

Incidence and burden ― overseas issues

Under UK law, the PRs are liable for the inheritance tax due on the chargeable transfer made on death. The tax is funded out of the estate assets under their control. The value of those assets, reduced by the tax payable, will be distributed to the beneficiaries according to the Will or the rules of intestacy. The PR will need to resolve the question of who ultimately bears the burden of the tax.

Burden of IHT

IHT on the estate of a deceased person - the general rule

Where a PR is liable to IHT on the estate of a deceased person, that IHT is treated as part of the general testamentary and administrative expenses of the estate (ie so that the burden of the tax falls on the residue of the estate) but only to the extent that:

  1. the IHT is attributable to assets situated in the UK

  2. those assets vest in the PR, and

  3. those assets were not comprised in a settlement immediately before the death

IHTA 1984, s 211(1)

The effect of this is that IHT attributable to specific legacies of UK assets and cash legacies (if paid out of UK assets) falls on the residue of the estate.

It also follows from this that IHT on any foreign property is not treated as a testamentary expense (even though the PR will be liable to pay the tax); the burden of the tax therefore falls on the property to which it relates rather than residue.

Of course, it

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