Since Alistair Darling's Pre-Budget Speech on October 9 2007, there have been a number of reports in the press stating that will planning using the nil-rate band of the first of a married couple to die will no longer be necessary as you can now transfer the nil-rate band between spouses and civil partners. (The Nil-rate Band is currently £300,000, and upon death a tax rate of 0% applies to the estate value up to this amount).
Since Alistair Darling's Pre-Budget Speech on October 9 2007, there have been a number of reports in the press stating that will planning using the nil-rate band of the first of a married couple to die will no longer be necessary as you can now transfer the nil-rate band between spouses and civil partners.
(The Nil-rate Band is currently £300,000, and upon death a tax rate of 0% applies to the estate value up to this amount).
This is generally true, but there will still be a number of occasions when you may want to establish a discretionary will trust:
1. Where a partner wants to benefit their children from a former marriage on first death.
This could be achieved using a life interest trust in the will, with income payable to the surviving spouse and capital to the children from the first marriage. The downside to this route is that it lacks flexibility, especially if there is an intention to make capital payments to the widow or widower by way of an interest-free loan.
2. Where there may be a desire to avoid assets being available to the local authority in the event of the survivor going into care.
By leaving assets to a trust on first death, those assets will not count as part of the surviving spouse's resources for the purposes of the local authority charge. Indeed, the split ownership of certain assets between the trust and surviving spouse may reduce the value of the asset in the hands of the surviving spouse (for example in the case of a private residence).
3. Where it may be desired to avoid children inheriting assets outright.
By passing assets to them via a trust, it will mean that they are protected from the claims of creditors and ex-spouses.
4. Where further Inheritance Tax could be available by the trustees of the will trust making loans to the surviving spouse.
This creates a debt and so reduces the taxable estate of the survivor on his or her subsequent death (however be aware there could be a restriction on the ability to deduct the loans from the survivor's taxable estate.
Summary
These are just some of the issues that need to be considered when drafting a will and giving thought to whether a nil-rate band trust should be inserted in the will or assets left outright to the surviving spouse/partner.
What if you have already set up a Discretionary Will Trust?
It is thought that the most flexible route will be to retain the trust in the will and then review matters after the first death.
The Financial Tips Bottom Line:
Tax and will planning can be quite a technical subject, therefore it is VITAL that you get the right professional advice from an expert who can guide you through your options.
By being proactive you could soon be utilising estate planning strategies that you didn't even know existed!
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