Introduction:

Inheritance tax is an unavoidable reality for many individuals when passing on their assets to loved ones. However, there are legal avenues that allow individuals to minimise this tax burden. One common misconception is transferring property to family members before death. While this may seem like a straightforward solution, it is crucial to recognise the complexities involved and the significance of seeking professional legal advice.

In this blog post, we will explore the importance of taking legal advice before transferring property to family members as a means to mitigate inheritance tax.

Understanding Inheritance Tax in the UK:

In the UK, inheritance tax is a tax on the estate of a deceased individual. The threshold for inheritance tax is currently set at £325,000, known as the “nil-rate band.” Any amount above this threshold is normally subject to a 40% tax rate. For those with considerable assets, this can amount to a substantial tax liability.

There is also the availability of the Residence Nil Rate Band where certain conditions are met. Where applicable, a further threshold of £175,000 can be claimed.

Transferring Property to Family in the UK:

Many individuals in the UK consider transferring property to family members in an attempt to reduce their inheritance tax liability. However, there can be many unintended consequences and this process requires careful consideration and adherence to UK legal regulations. Seeking legal advice from professionals such as our team at Franklins Solicitors, is crucial to ensure compliance and prevent unintended consequences.

How can a solicitor help?

Expert Guidance: A solicitor who is an expert in inheritance tax can provide expert guidance tailored to your specific circumstances. For example, our Wills & Probate team has an in-depth understanding of UK inheritance tax laws and regulations, ensuring that you receive accurate and up-to-date advice.

Personalised Strategies: Our legal experts can assess your situation, taking into account your assets, family dynamics, and future goals, to provide tailored solutions that are both effective and legally sound.

Maximising Exemptions and Allowances: Our experienced solicitors have in-depth knowledge of the various exemptions and allowances available for inheritance tax purposes. They will explore every available option, such as the residence nil-rate band or business property relief, to maximise tax savings for your estate.

Structuring Property Ownership: We can guide you in structuring property ownership in the most tax-efficient manner. We’ll consider trusts, joint ownership, or lifetime gifts, ensuring that you protect your assets while complying with UK tax laws.

Peace of Mind: By seeking legal advice, you can have peace of mind knowing that your assets are safeguarded. Our expertise and attention to detail will help you navigate the complex legal landscape, minimising the risk of errors or unintended consequences.

Conclusion:

When it comes to minimising inheritance tax liability through property transfers to family members, seeking professional legal advice is paramount. Our team of experienced solicitors possess the expertise and knowledge to provide you with tailored advice specific to your circumstances.

By engaging with a solicitor, you can ensure compliance with UK inheritance tax laws, explore available exemptions and allowances, and structure property ownership in a tax-efficient manner. This proactive approach not only safeguards your assets but also provides peace of mind, knowing that you have taken the necessary steps to protect your legacy and maximise the value you pass on to your loved ones.

For further advice and assistance please contact our Wills & Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Background

The Trust Registration Service (TRS) is a register of express trusts that have a liability to pay one of the following taxes: capital gains tax, inheritance tax, stamp duty land tax (SDLT) and stamp duty reserve tax. It was introduced in 2017 by the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and set out in EU’s Fourth Money Laundering Directive.

The scope of the TRS was extended by the Fifth Money Laundering Directive implemented by the Money Laundering and Terrorist Financing (Amendment) Regulations 2020 which came into effect on 6^th October 2020. Since the Fifth Money Laundering Directive, all trusts (whether taxable or not) need to be registered on TRS unless the trust is specifically excluded.

The trusts caught in the new scope include all UK express trusts and some non-UK express trusts, in existence on or after 6^th October 2020.

In simple terms, an express trust is created by a settlor by way of a written document, such as a Will, deed, or declaration of trust, to take effect either during their lifetime or after their death. Trusts which are implied, arise on intestacy or are created by court orders are not express trusts which are subject to TRS.

Trustee Responsibilities

If you are a trustee of a trust that is registrable, you are expected to register the trust on TRS via the Government Website or arrange for an agent such as an accountant or solicitor to register the trust.

It is important to note that trusts that were in existence on or after 6^th October 2020 but have been closed since need to be registered on TRS and then the trust record must be closed.

Declarations of Trust

Co-ownerships trusts such as declarations of trusts set up by joint property owners to hold property for themselves as tenants in common are excluded from TRS registration requirements. However, the exclusion does not apply if the legal and beneficial owners are not identical. For example, in a scenario where there are two people on the title of the property but three people have a beneficial interest in the property, the trust would need to be registered on TRS.

Penalties

HMRC may issue financial penalties on the failure to register a trust or for late registration of a trust.

There is no penalty for a first offence to register a trust or for late registration of a trust unless the failure to do so is due to deliberate behaviour of the trustee. Where HMRC finds that the failure to register a trust has been deliberate, HMRC may impose fines of £5,000 per offence.

HMRC have stated that they will initially adopt a light touch to penalties if trusts are not registered by 1^st September 2022 given the new registration requirements.

More information about the TRS can be found in the HMRC Trust Registration Manual

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

According to a recent article, HMRC have seen a record high of £274million in respect of inheritance tax claimed from over 5,000 investigations undertaken in the 2019-20 tax year. For clarity, an investigation by HMRC is undertaken to ensure that all assets have been accounted for when completing the relevant tax paperwork to apply for the Grant of Representation.

The duty to ensure that correct tax is paid lies with the executor appointed within the Will or the administrators of the estate if no Will was prepared. When acting as an executor or administrator, you will need to account to HMRC for all assets within the estate, all debts/liabilities which are being deducted and any exemptions or reliefs that are being applied to reduce the inheritance tax liability.

There are many pitfalls for the unwary executor/administrator when dealing with Inheritance Tax (IHT), they range from not applying a relief correctly to estimates being passed off as date of death valuations.

The valuation of any asset is done at the date of death on its open market value between an unconnected buyer and seller, and one of the most common areas of investigation are valuations of property, investments and, increasingly, chattels.  A vague low value estimate, especially of property or works of art, will stand out when an IHT return is reviewed and trigger an investigation.

As far as reliefs are concerned these need to be used correctly as the wrong nil rate band calculation being used or negligently applying a charity exemption could lead to a rather expensive additional IHT liability for the beneficiaries of the estate and they may well take action against the executor or administrator for the costs of this, such as interest and penalties, if it was personal representative negligence that lead to the incurring of these costs.

The most common forms of exemption/reliefs are as follows:

• Spousal exemption – anything passing to a spouse or civil partner is completely tax exempt, including those based in other tax domiciles;
• Charity exemption – again, anything passing to a charity is tax exempt as well, although watch out that the charity is in fact a charity and if based abroad qualifies as one in this country;
• Annual allowance – this relates to gifts and currently stands at £3,000 per annum. This does not apply to gifts made where the donor continues to benefit from the asset being given away or gifts are made out of surplus annual income;
• Nil Rate Band – each individual currently has a nil rate band of £325,000 which is free from inheritance tax;
• Transferrable Nil Rate Band – the survivor of a marriage or civil partnership can claim up to double their own nil rate band if they receive their spouse or partner’s entire estate under the spouse exemption mentioned above. The availability of this can be limited if the first to die gave money to non-exempt beneficiaries, such as children and other relatives, on their death at the same time or instead of their surviving spouse or partner.
• Residence Nil Rate Band – currently set at £175,000 and available where the deceased left their property to direct descendants (again, this can be transferred from deceased’s spouse of civil partner’s estate if unused and available but the surviving spouse must give a property to their children). It is not available to people who leave their estates to nephews/nieces even if they are akin to direct descendants because they have no children of their own.  Also its transferability is restricted, unlike the standard nil rate band, so that if there are no surviving children or grandchildren on the second death or the survivor leaves their estate to someone other than their children or most likely step children there is no residence nil rate band to double up.

There are however some other obscure reliefs that may be available which some may not be aware of when calculating the inheritance tax liability of an estate. A few of these are provided below.

Quick Successive Relief (also known as QSR)

This relief is available where a deceased has inherited from another estate within a short period of time before their death. In order for the tax relief to be claimed, the two deaths must be within 5 years of one another and inheritance tax must have been paid on the asset when the first person passed away.

Depending on how long the individual survived, will depend on the relief available. For example, if the deaths are within a year of one another then 100% relief from inheritance tax on that proportion of the estate is received. If however, they survived three and a half years, then the relief is reduced to 40%.

Business Property Relief

This relief is very simple on the face of it.  If you own a business or have shares in a company and have done so for 2 years or more you can leave up to 100% of this tax free to a beneficiary in your Will.  The reality is not that simple.  There are several conditions and the most important of these is that the company that you own shares in or business you run must have been trading for most if not all of the period of the deceased’s ownership.

The trading requirement is the most contested aspect of this relief.  For the purposes of claiming this relief a company or business must be trading rather than just holding investments.  The most common example of this distinction is property owning companies that rent out office space.  The company is trading in a literal sense of the word but for IHT purposes is just earning investment income and therefore BPR is not available or restricted to the pure trading aspects of the business, if there are any.

Agricultural Property Relief

Like BPR above this is another seemingly straightforward relief.  The relief works by making farms, the houses, buildings and farmland, i.e. agricultural land, tax free.  What qualifies as farming to the lay person does not always mean that HMRC regard the farm or its activities as qualifying for APR.

It works by relieving the entire agricultural value of farm land and farmhouses from tax.  Importantly it does not exempt the market value of the land and house being relieved and this might be more than its agricultural value, so caution has to be paid as how it is valued and a professional valuation is essential when attempting to claim this relief as trying to claim the whole value of the land may end up with an investigation and more tax being paid than was bargained for.

This like BPR is a very heavily litigated area with the main thrust of disputes between estates and HMRC coming from whether a farmhouse is actually one at all.  The other pitfall with this relief is hope value and this comes from where the farmland has development potential and this can also be a taxable asset so when asking for a valuation is best to make sure the surveyor carrying out the valuation investigates its planning potential.

It is important to note that administering an estate and calculating an inheritance tax liability can be complex depending on the assets within the estate and what exemptions or reliefs are to be claimed. As such, we do advise that you seek specialist advice in these circumstances to ensure that should an investigation by HMRC be issued, all necessary steps have taken to finalise the inheritance tax account with HMRC prior to the estate being distributed. If the estate has been distributed and an investigation is issued by HMRC, this may leave the executor or administrator in a position where they have insufficient funds to settle any additional tax as the estate has already been distributed.

If you require advice in relation to the administration of an estate contact our expert Private Client team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.