I am dealing with an estate where John died in 1981 and left a small estate - personal chattels and a small amount cash - to his wife, Jane, who did not obtain probate.
Jane has now died and the executors of her estate are keen to claim the (needed) Transferable Nil Rate Band.
JOHN’s WILL named his wife Jane as Trustee, Executor (and beneficiary) and a solicitor (since deceased) as Executor and Trustee…
“in their names or under their control and to stand possessed of such investments and of all the residue of my Estate upon the following trusts that is to say:
- Upon trust for the said Joan absolutely provided that she shall be living at the date of my death
- Subject thereto Upon Trust for (only son)…
- … Any moneys liable to be invested upon the Trusts of this my will may be invested by my Trustees upon any security …freehold property etc …my Trustees shall have full powers of investing and transposing investments as if they were absolute owners thereof…
Questions
It is known Jane took immediate possession of the personal chattels etc but other paperwork has yet to been found.
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If the assets (valuing less than the spousal tax free allowance of 1981) were to have passed through the trust as initially purportedly established in John’s will, would they be considered to be passed directly from husband to wife for IHT purposes?
ie. would the transferable nil rate band of John that is now being sought be fully available? -
With Jane being an executor, trustee (with the solicitor) and sole beneficiary of a will that apparently creates a trust (though no other paperwork has been found to support the idea one was ever created, and to the knowledge of her current beneficiaries one wasn’t established, and the value of assets not exceeding the spousal tax free allowance of the time) what alternate mechanisms would have been most likely used to pass the assets?
ie. Would it be reasonable to assume Jane would have terminated the trust and just appointed the assets to herself? -
Aside from the will, death certificate and marriage certificate, what paperwork could I reasonably require (as obviously this is very challenging 44 years later and probate was not obtained) in order to satisfy HMRC that the nil rate band is transferable?
Many thanks for your comments.