W & H owned matrimonial home as joint tenants. W died in March 2020 leaving £10,000 to H and remainder of her estate split as to 25% to their adult son S and 75% equally between S’s 3 children…all under the age of 18. The executors are H & S.
As I see it the consent of the infant beneficiaries is not required as the proposed arrangements are to their advantage & not to their disadvantage.
W’s estate was £250,000 (after £10,000 gift to H) plus her half share of the matrimonial home was £175,000…total £425,000 making W’s estate subject to IHT payment of £40,000.
Assuming that H will co-operate (his Will leaves his estate to S & S’s children) can there be a post death severance of joint tenancy which will then enable the use of RNRB of £150,000 thus providing £475,000 allowances and therefore no IHT payable ?
If this is possible does anyone please have a post death variation precedent that they can share (or sell) to me ?
John Edge (Retired Solicitor)
Legal Eagle Wills Ltd
I may be missing something, but if the home is held as joint tenants and therefore passes to the husband by survivorship, the value of the wife’s share will be spousal relieved. So the taxable estate will be just £250,000 and therefore within the nil rate band?
Yes, it is possible for H to enter into a variation effective under s.142 IHTA 1984, to gift a half share of the property as though a notional severance of the property had been effected for IHT purposes immediately before W’s death.
However, if the matrimonial home was held by H & W as joint tenants, surely it passes to H by survivorship and is exempt from IHT. On that basis, W’s estate passing under her will amounts to £250,000 - within the IHT nil rate band.
Assuming the residence nil rate band still exists at the time of H’s death, the purported severance of the joint tenancy at this time would appear to reduce the aggregate RNRB available by £25,000 (£150,000 + £175,000, instead of 2x £175,000), causing an additional £10,000 IHT to be payable on H’s death. Good for the nation, but not for the beneficiaries.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Tobias…you are quite correct and I belatedly came to the same conclusion a few days ago and the probate papers are being signed off this afternoon. My obsession with involving severance and RNRB I can only put down to " Covid Lockdown " !
I was about to reply to say the same as Tobias. As the house was held as joint tenants, it is not part of the wife’s “estate” and passes by survivorship to the husband, with the spouse exemption
applying.
Subject to the inter-spouse point made above the death of W results in the jointly held property passing by survivorship to H. It cannot then be subsequently severed by H post W’s death.
However, it is still In essence possible to achieve your objective using a DoV (s 142).
Effectively, H will under a DoV be deemed to have severed the beneficial joint tenancy immediately before the death of W so that W’s interest formed part of her free estate on her death which can then be varied by H.