Please can you help clarify this for me as there seems to be quite a lot of uncertainty and different interpretations of when to register the trust over a legal title within an estate/will trust.
If an estate has a property which has been left in a Will where the legal owners (as executors) differ from the beneficial owners, does the trust over the legal title need to be registered with HMRC TRS before the 2 year exemption for Will Trusts?
e.g. Mrs X dies and is the sole owner of a property.
Mr Y and Mrs W are named as executors.
Miss G and Miss H are the beneficiaries and hold the beneficial interest in the property.
This creates a trust over the legal title, but does it get a 2 year exemption period?
Hi Karl, Can you please elaborate on your answer a little as there still seems to be the interpretation that there is always a 2 year exemption (unless property is being sold). Many thanks,
You don’t necessarily need to register the Trust on the TRS within 2 years of death as the Trust, in theory, may never come into play e.g, it being wound up within two years, hence read back.
Depends on whether you accept the unchallengeable legal analysis that a will trust does not exist at all until the admin period ceases as regards the intended trust property HMRC certainly accept this for tax purposes but apparently not for TRS.
It seems in your case that as the interests of G and H are absolute the AP will likely end fairly soon after death but the 2 year rule will exclude the bare trust from registration meanwhile. This assumes that they are not taxable trusts for which there is no such exclusion. It might be arguable that there is no express trust e.g. if the gift is a specific gift the legal title will be held on a non-registrable implied trust. It is unusual for a Will to specify that a specific legacy is held on an express trust.
I note in passing that Canada’s system has a whole range of exclusions for bare trusts whereas in the UK the common one of the exact same persons hold legal and equitable titles is a constant pain coupled with no period of grace for lining that up where possible.