I am adminstering an estate where the residue was left on wide discretionary trust. The Trustees have appointed the residue out to the widow (partly outright and partly on a LI trust) and the estate is now spouse exempt. I am trying to ascertain whether we still need to submit an IHT400, or whether we can go straight ahead with a probate application. I have tried calling HMRC, but end up on hold for 30 minutes before they answer and then hang up. Any guidance from the forum would be very helpful.
I think you can proceed straight to probate, assuming the estate is an excepted one. I would probably send a copy of the Deed of Appointment to the probate registry (along with the Will) to show the estate qualifies for spouse exemption.
Thanks Ihsan and I think I’ll go ahead on that basis. I finally got through to HMRC yesterday and the HMRC officer had absolutely no idea whether I needed to put in an IHT400 or not. Alison
I am not sure that is correct. S144 applies to make the estate spouse exempt but S144 only takes affect over the 1984 Act. It is the Excepted Estates Regs that confirm whether or not the estate is excepted.
I do not see S144 changing that so i would not see it as an excepted estate.
Hmm, I agree with Nigel in that the excepted estate regulations determines whether it is an excepted estate or not, however I believe the said regulations do provide for the estate to be an excepted one, (assuming the other conditions are met, i.e. gross value of estate, value of foreign assets, specified transfers, GROBs etc).
In particular, s5 provides that a spouse transfer means any disposition of property comprised in a person’s estate, so I believe a post-death s144 appointment would satisfy this.
I know HMRC treat this position for post-death Deeds of Variation (see IHTM06035) so I think they should apply the same for s144.
Just wondering whether it was established that a certified copy of the deed of appointment should be sent to HMCTS with the original will, on the basis that as a result of the deed of apportionment, the surviving spouse is given the whole of the estate absolutely or is given an interest in possession in it, it qualifies as an excepted estate and an age to 400 is not necessary.