There are three trustees in a will trust - ONE of them is a remainder man
The trustees are holding the property on trust for life for the deceaseds husband. After upon his death the property will go to the remainder man.
The trust came into effect at the beginning of this year upon the settlors death.
There are currently no taxes to pay as I’m aware. And, no income is coming from the property.
Does the trust need to be registered yet?
Does the following still apply?
Trusts that hold property will, like other trusts, only need to be registered if the trustees incur a liability to tax. Thus, if the property is occupied by a beneficiary – and is not income-producing - no requirement for registration will exist unless a taxable event occurs for IHT, CGT or SDLT purposes
As the Will Trust is not taxable, it is excluded from registration for two years following death. After this date, if the Trust is still in existence it should be registered as a non-taxable Trust. (If it becomes liable to tax before then, it should be registered as a taxable trust.)
In addition, as the legal title to the property is likely to be transferred into the trustees’ names, a Co-ownership Trust arises which is not exempt, as the trustees and beneficiaries are not the same persons. Therefore, this will also need to be registered.
‘Co-ownership trusts are often bare trusts (See TRSM10030) and if so are not required to register for taxable purposes either, because any UK tax liability is incurred by the beneficiaries rather than the trustees.’
The co-ownership trust would be registered as a non-taxable trust.
Jack - this was my understanding of the ‘Alice and Bob’ example in TRSM23020, so unless the trustees and beneficiaries are the same people, registration is required.
In Alice and Bob there are clearly two separate trusts. In Eastman’s example there is one single will trust. The trustees are vested with the legal title under that trust at all times until the life tenant’s death or earlier termination of interest. As there is only one remainderman a co-ownership trust never exists. If there had been more than one there might be a question of whether one then came into existence but it would certainly be unnecessary and the trustees would convey the legal title to them jointly, a co-ownership trust which would be excluded from TRS. The right of a remainderman who becomes absolutely entitled to call for the legal title is certainly equitable but it is enforceable against the trustees whether one describes them as holding it on trust or not. There is certainly no need for them to declare that they do, separately from the existing trust, but it seems that if they do HMRC consider it registrable.
If I am reading it correctly (please feel free to correct my understanding, Alice and Bob had the FIRST trust which was ‘a property with a declaration of trust confirming they own as tenants in common. Then, the SECOND trust which is by the terms of her will leaves her share of the property on trust to Bob to occupy for the remainder of his life; and thereafter to her daughter Clara. Alice’s son David is appointed as executor and trustee of the will and also appointed as a second trustee of the property with Bob.
In my case there wasn’t a property with a declaration of trust, simply just a trust in terms of the will.
Am I right? My other thoughts are to just register anyway as it seems like a bit of minefield in this case.
Referring to this I would be of mind that this does not need to be registered for at least two years.
If your trust is not liable for UK taxes
You must register your trust even if it’s not liable for UK taxes - unless any of the following apply.
You do not need to register your trust if it:
is a will trust created by a person’s will and comes into effect when they die (as long as they only hold the estate assets for up to 2 years after the person’s death)
You are right. As I have mentioned previously, and before the HMRC views on penalties was published in TRSM80000, the only downside of registering are any costs, including of keeping it up to date, and the rights of third parties to access data, which is now also more clearly explained in TRSM60000. The costs of later arguing the toss with an organisation irremediably deluded as to its own infallibility, let alone penalties, are surely likely to be greater except in those very cases which the law is designed to uncover for chastisement by the criminal law.
It’s better to be save than sorry moment unfortunately. Can you just clarify that in this specific case I’m dealing with the registration doesn’t need to be done until two years have passed?
TRSM23020:“If an estate administration is completed within 2 years, but there is an ongoing express trust, this ongoing trust would need to register on TRS after two years from the date of death”.
And see the example of Sophie:“Here, the trust technically comes into existence when the administration period has ended and Sophie switches role from executor to trustee.It may be difficult to ascertain when this occurs. If the assets have not been transferred to Gisele within 2 years of death than the trust needs to be registered at that point if the administration period has ended or at the date when the administration period ends if later.”
As HMRC say it can often be difficult to tell when the administration period ends and this has been covered here on the thread “Trs after 2 years of death”. In your case it seems very likely that the administration period has ended but if the only asset is land not until the executors have assented formally to the trustees (even if they are the same persons).
The two year limit is for trusts where the administration period has already ended. Until that period ends a trust is not registrable but will become immediately registrable if that period ends after the 2 years. During the administration period a trust in the Will is not operative but care is needed because the period can end as regards some assets in the estate but not others. It ends as regards a given asset when that asset can be regarded as no longer needed to pay debts, costs or legacies. This is not always easy to pinpoint as regards assets other than land which do not require an assent. With a trust of residue the administration period will end only when it is finally ascertained i.e. the remaining assets are not required for those other purposes.
Is the only asset land? If so has there been an assent by the executors? If not what else is in the trust? And in that case have all debts costs and legacies been paid?
It seems very likely to me that the administration period is still running, that it will not end as to the land until assent and as to the money only when it is finally ascertained as not required for administration. As it is only 12 months since the death it does seem likely that you will have another year (and possibly longer). If the money is in the same trust as the land, and the administration period ends as regards only to that within the two years, then the entire trust will become registrable at the end of the 2 year period even if the land has not been assented so the administration period is still on foot as regards it. It is trusts that are registrable not trust assets.
Another point I have queried on here before, is whether it is really worthwhile, where it is only a matter of time before a trust needs to be registered, to engage in esoteric analysis of the precise timing. Especially when it turns on subtle issues of fact or law like whether the administration period has ended and if so as to what asset. If you have a life interest/remainder trust which is unlikely to end within 2 years of the death, what is the upside in making a diary note to register it with a day to go, having presumably taken the precaution of already obtaining instructions to do so? What could possibly go wrong? The cost/benefit analysis is different to the other main conundrum: is a trust required to be registered at all? Even there however, registration may be safer than relying on defending your non-registration position against HMRC later. HMRC are no more interested in legal nuances than is a hyena in haute cuisine.
Some very valid points made. I think at the end of the day the government wants as much info as possible, they make it as vague as possible so in the end you just register.
If John has a carrot but no onion then he doesn’t have to register, but if he cuts up the carrot and the onion isn’t organic then he does. On the other hand, if John has a pink hat that will give way to more vegetables then no registration is required. It’s all a load of cobblers, they should just get everyone to register every trust that exists. Or just risk not registering and them finding out.
You might conjecture that the true objective of the legislation might be to deter John from having anything to do with vegetables regardless of type of headgear.
If I might throw a different coloured hat into the ring, or perhaps a non-organic carrot, was the property referred to at the start of this saga owned solely by the deceased?
If owned as tenants in common by the deceased and A N Other then, as the legal ownership and beneficial interests diverge, the trust of land is registerable on the TRS within 90 days of the deceased’s death.
Whilst concentrating on trying to get the grant, etc., this seems to be an unfortunate (or do I mean ill conceived) tripping hazard, especially if one is looking at the terms of the will to identify if registration is required, and when.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals