Transferable nil rate band

The transferable nil rate band has to be claimed within two years of the death of the surviving spouse.

However, I have two cases where Probate of the Will of the surviving spouse is not required, primarily because the assets which become potentially taxable on second death are held by Trustees (who are alive).

In those circumstances is it sufficient simply to send to HMRC Trusts and Estates the IHT402, the transferable nil rate band claim form?

In both cases the value of the estate, combined with the assets in trust, falls below the double nil rate band exemption - including the residence relief - of £850,000.

Any comments would be welcome.

R.H. Foster

I suspect part of the answer depends on whether it is an excepted estate. If not, then the PR’s presumably have an obligation to file a full return anyway.

I suspect you have to file as it sounds like the assets in trust are worth more than £150k. You may also find that you can’t apply the TNRB here for the purposes of meeting the low value threshold.

Andrew Goodman
Osborne Clarke LLP

I understand HMRC will accept a claim by trustees, not just those administering the “free estate”.

Once the trustees submit their IHT100 and TNRB claim, I would expect HMRC to approach those dealing with the estate for details thereof.

Whilst in the estates in question asset holders might not require sight of probate, my recollection is that the indemnity usually required in these instances contains an assurance that no IHT is payable. In order to regularise matters, it would seem appropriate for those administering the estate to promptly submit details to HMRC - the declaration to asset holders could be viewed by HMRC as evidence of an attempt to avoid the payment of tax, the knowledge of which could taint any professional who is aware of the situation.

Paul Saunders