Making Your Will - Guidance

It is easy to keep putting off making a will. However, having a valid will is the only way to guarantee that your estate goes to who you want it to when you die.

If a person dies having made a will, the distribution of their estate is normally straightforward. If someone dies without making a will, they are said to have died intestate. In this case, the laws of intestacy will apply.

This guide deals with the law in England and Wales. Intestacy law is different in Scotland.

Before making a will, it is important to consider exactly what you wish it to cover and who you want to benefit from it. It is sensible to specify your major financial assets, such as your home, investments and other possessions, and to leave clear instructions regarding who will receive each. If there is a special item that you want to leave to a particular person, even if it is of little value, this too can be included. If you have children under 18 years old, your will can also make provisions for them and state who you wish to care for them in the event of your death.

When someone dies without having made a will, if they have a spouse (this does not include a ‘common law spouse’ – see below) or civil partner and children, the intestacy laws provide that their spouse or partner will inherit the entire estate if it is valued at £250,000 or less.

The statutory limits that apply to estates exceeding £250,000 are as follows:

1. If there is a husband, wife or civil partner, and children:

• the spouse/partner gets the personal chattels, the first £250,000 and a life interest in half of what is left; and

• the children of the deceased, including illegitimate and adopted children but not step-children, share between them half of the excess over £250,000, straight away if they are 18 or older, and the other half when the surviving spouse dies. The share of a child under 18 is held in trust until they reach the age of majority.

2. If there is a husband, wife or civil partner, and relatives but no children:

• the spouse or civil partner receives the personal chattels, the first £450,000 and half of what is left; and

• the parents of the deceased, or if they themselves have died, the deceased’s brothers and sisters or their descendants, share the other half of the excess over £450,000.

3. If there is a surviving husband, wife or civil partner, but no other relatives, the surviving spouse/partner gets everything.

4. If there are children, but no living husband, wife or civil partner, the children share everything equally.

5. If there is no husband, wife, civil partner or children, everything goes to the next available group of relatives in a strict order of legal precedence.

6. If there are no available relatives, the entire estate goes to the Crown.

Inheritance Tax (IHT) must be paid on all taxable estates valued at £325,000 (2015/16 rates) or more.  The 2015 Summer Budget introduced a further exemption which will rise over the next few years to £175,00 relating to the home of the deceased. However, bequests to spouses, civil partners and donations made to charities are normally exempt from IHT. There are numerous reliefs and exemptions from IHT available, and planning in advance is essential to maximise these.

Gifts made during a person’s lifetime are also potentially subject to IHT. Any gifts made seven years or more prior to the death of the person making the gift are normally free of IHT, although in particular circumstances older gifts may become taxable. Where the estate of the deceased includes a business, farm, woodland or National Heritage property, specific reliefs from IHT are available. If IHT is applicable, it is payable at 40 per cent on the amount of the taxable estate after all reliefs.

It is important to note that a will that was made before a person entered into a marriage or a civil partnership normally becomes invalid after the event. It is therefore wise to make a new will as soon as possible after getting married or becoming a civil partner.

If you and your partner simply decide to live together, the situation can become more complex, especially if no will is made. Cohabitation does not give a surviving partner any automatic right to inherit their partner’s estate.

Assets that are held jointly, such as joint bank accounts, will normally pass to the surviving partner. However, once these types of assets have been dealt with, any residual assets that are legally the property of the deceased will pass strictly in accordance with the laws of intestacy, which do not make any provision for the surviving partner of unmarried couples.

If a person is financially dependent on the deceased but is not provided for under his or her will, an application to the courts can be made under the Inheritance (Provision for Family and Dependants) Act 1975. Where the claimant is a cohabitee, they must have been living with the deceased as if they were married or in a civil partnership for two years prior to the death, or have been completely or partially provided for by the deceased in the period just before they died.

The courts have considerable powers to determine what money or assets should be passed to a surviving partner and will choose what, if any, provision should be made for the applicant.

It is often thought that a person’s final wishes as stated in the terms of their will must be followed exactly, but this is not necessarily the case. If everyone who is to benefit from the will agrees to a change or changes, a variation of its terms can normally be made using a Deed of Variation (also known as a Deed of Family Arrangement). In order to do this, however, an application must be made within two years of the person’s death.

Originally, Deeds of Variation were introduced in order to protect dependants who would otherwise be left unfairly deprived under the terms of a will. Nowadays, these arrangements are mostly used to reduce the amount of IHT payable.

When a variation to the terms of a will is proposed, anyone who is a beneficiary of the deceased’s estate and whose entitlement is reduced as a result of the proposed variation must agree to it in writing. If any of the beneficiaries are under 18 years of age, the approval of the court may be needed before a Deed of Variation can be made.

IHT and estate planning can be complicated. When seeking to manage future tax liabilities, it is always best to take professional advice on any aspect about which you are unsure in order to avoid unforeseen consequences. What is certain is that making a will is highly desirable, inexpensive and not something that should be put off.

If you have any concerns on this topic, we can help.

What Happens on Intestacy?

The Inheritance and Trustees’ Powers Act came into force in late 2014. It changes intestacy law in England and Wales to allow a deceased's estate to pass to their widow, widower or civil partner absolutely where there are no children.

The intestatcy rules can be complex, but. If there is a husband, wife or civil partner, and children, then the spouse/partner gets all the personal possessions and  half of the estate absolutely and the children of the deceased, including illegitimate and adopted children, share between them half what is left straight away, if they are 18 or over.

The Government has created a straightforward guidance tool to assist executors in understanding the entitlement of relatives to an intestate person's estate.

How do I Leave Money to Charity in My Will?

It's easy to include a charity in your will, but you should always consult your solicitor before you write or change your will  to be sure it reflects your exact intentions and that you understand its implications.

Before you call your adviser, take a few minutes to clear your thoughts and decide exactly what you want to do. Ask yourself...

What have I got to leave?

If you own your home, how much is it worth? Have you any savings or investments? Valuables? Jewellery?

Who do I want to help?

Of course you must make provision for your loved ones first. Make a list of their full names and addresses.

Who else has made a difference to my life?

Has a charity helped you, or someone you love? Which causes have been important to you? Which appeals have really moved you? If you know them, make a note of their official charity name, address and registered number for your adviser.

One potential problem to making a charitable gift is that if the gift is for a set sum (say £20,000) to be paid before the balance of the estate is distributed, this may leave your executor short of cash to pay necessary expenses.  In some cases - for example where the main asset is a house which proves difficult to sell - family members may have to lend your estate money so that charitable donations can be made.

On the other hand, if the charity is a 'remainderman' (paid out of the residue of the estate after the specific bequests are met), the wording of the will needs to be very careful. Recently, a number of cases have arisen because charities have interpreted the wording of a will to mean something different from the interpretation placed on it by the executors and have gone to court.

 Is it the 'right' charity?

Many charities are organised on a 'regional' basis, rather like franchises. If you will makes a bequest to the charity without specifying the local branch (eg 'Age Concern', rather than 'Age Concern <your local branch>,' then the bequest will probably be given to the central organisation, not the local branch.

 It is always worth considering the practical side of any arrangements you make under your will.

What is a Lasting Powers of Attorney?

In October 2007 there was a fundamental change on the way in the way powers of attorney are created and the powers that they can give attorneys, when the Enduring Power of Attorney (EPA) was replaced by the Lasting Power of Attorney (LPA). EPAs are no longer available, although existing EPAs remain effective.

A power of attorney can be a godsend in cases in which people become incapacitated and unable to deal with their own affairs. Setting up an EPA is a sensible precaution for many people.

Similarities and Differences

Both types of power of attorney are created so that someone’s affairs can be looked after by someone else. In the case of a standard EPA, this is limited to a person’s financial affairs, but the LPA can be used to give much wider powers to the attorney. Any EPA or LPA should be only be undertaken with the advice of a solicitor, as they give considerable rights to the attorney, even in their most limited forms.

Under an EPA, if the attorney wishes to take over exclusive handling of the affairs of the creator of the EPA when that person is no longer mentally competent, he or she must apply to the court. Although LPAs have to be registered when they are to be used, there will no longer be any need to inform anyone when they are to be put into effect, so it will no longer be evident to third parties when a person is no longer able to manage their own affairs.

Under an LPA, the person granting the power of attorney must when it is created, obtain a certificate, signed by a competent witness, stating that they are mentally competent and not making the LPA under the influence of someone else. A wide range of people (including, for example, teachers, accountants, civil servants and shop-keepers) are deemed to be competent to make such a judgment and witness the document.

An LPA also allows the appointment of an ‘attorney for personal welfare’, who is permitted to decide whether ‘life-sustaining treatment’ is to be provided when the person granting the power is no longer able to give informed consent. The definition under the MCA’s definition of ‘life-sustaining treatment’ is also rather vague. It is the ability of attorneys to make life-or-death decisions which is causing much disquiet about LPAs in the legal profession.

In late 2009. following complaints about the complexity of the forms for appointing an attorney under an LPA, simpler forms were introduced. In October 2007 there was a fundamental change on the way in the way powers of attorney are created and the powers that they can give attorneys, when the Enduring Power of Attorney (EPA) was replaced by the Lasting Power of Attorney (LPA). EPAs are no longer available, although existing EPAs remain effective.

A power of attorney can be a godsend in cases in which people become incapacitated and unable to deal with their own affairs. Setting up an LPA is a sensible precaution for many people.

There is more information on LPAs on the DirectGov website.




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What is a Trust?

A trust comes into effect when a ‘settlor’ places money, land or other assets in the hands of trustees. The trustees are the legal owners of the property but are obliged to hold and manage the property for the benefit of a person or a group of people, who are called beneficiaries.

There are several types of trust:

Bare Trust
In this type of trust, sometimes called a ‘Simple Trust’, the beneficiary has an immediate and absolute right to the property in the trust. The trustees have no discretion as to how the fund is managed. They must manage the trust assets for the maximum benefit of the beneficiary. The income of these funds is taxed as if it is the income of the beneficiary. Parents or grandparents can be trustees of a Bare Trust for their children or grandchildren.

Discretionary Trust
Here the trustees have discretion over to whom and when payments should be made and also whether conditions should be attached. They are usually given discretion as to the investment of the fund. This type of fund may or may not be allowed to accumulate income. Discretionary Trusts are often used when there are worries that a beneficiary may act irresponsibly if given assets outright.

Accumulation and Maintenance Trust (A&M)
In an A&M Trust, the settlor places money in trust for children/grandchildren until they reach a specified age (maximum age 25), when they become entitled to the trust fund. A&M Trusts are used to provide financial support for younger family members. Until 2006, they had favourable tax treatment, but they are now less ‘tax friendly’.

Interest in Possession Trust (IIP)
Here, the beneficiary has a right to the income but not the capital of the trust fund. For example, a beneficiary may be allowed to receive the income arising from shares during their lifetime, with the shares going to their children on their death.

Heir Hunters - Take Advice!

Until the recent publicity afforded by television shows on the subject, many people might not have realised that ‘heir tracing’ companies exist, let alone that they research ‘promising’ estates by looking at public records and then contact potential beneficiaries of those estates.

The prospect of obtaining a windfall following a knock on the door by such a firm makes many people only too glad to sign the contract offered, but quite often these can involve very considerable sums being paid to the heir locators – a figure of 25 per cent of the inheritance is not uncommon.

It is often the case that your entitlement to an unexpected legacy can be achieved more economically. Many such approaches result from the firm researching into the background of substantial unclaimed estates and much of the work that is done can be done by an ‘amateur’ (especially one with an interest in genealogy) without great expense.

Here are some things to think about if you are approached by such a firm. Often, the details they give you will be scanty and will not include the likely value of the inheritance. The withholding of critical information in order to make you sign the contract may make their agreement with you unenforceable.

Firstly, try to establish who the deceased is, your relationship to them and the value of the estate. The latter can normally be found with a little research, as wills are public documents. The more distantly related to them you are and the more other possible beneficiaries, the less you are likely to receive.

Do not rush! If the visit arises because of an unclaimed estate, the estate will not pass irrevocably to the Crown until 30 years after the death of the testator, so there is normally plenty of time. The Treasury Solicitor’s website contains details of unclaimed estates, which is a good starting place for your research.

There have been a number of successful legal actions taken against heir hunters which show the importance of not allowing yourself to be pressured into making any legal agreement with them until you have taken professional advice.

Changing Wills For Benefit

A will expresses the final wishes of the deceased person and it is commonly thought that a will is irrevocable after death. However, provided everyone agrees, it is normally possible to vary a will provided that the application is made within two years of the death.

A Deed of Family Arrangement, or DFA, (also known as a Deed of Variation) is a legal document which can be used to 'rewrite' provisions of a will. While these were originally introduced to protect dependents from being unfairly deprived, they are now mainly used to reduce Inheritance Tax.

To be effective, a DFA must be made in writing and signed by all of the beneficiaries who would lose entitlement to the affected part of the deceased person’s estate. If this affects any person under age eighteen, it may require the formal approval of the court.

Estates - What Happens if Values Fall?

One of the biggest problems now facing executors is that as the recession progresses, most assets, other than cash, are falling in value, which can mean that the value of an estate for Inheritance Tax (IHT) purposes is greater than the market value later on.

Where assets are disposed of at a loss within twelve months of the death of the testator (the legal term for the person who left the will), IHT relief is available. This works as below, but note that the relevant date is twelve months after the death, not after probate is granted: a powerful incentive to make sure that the administration of the estate is progressed with reasonable speed.

If the assets which have lost value are quoted shares, a claim can be made on their sale, but not on a transfer. If the assets consist of land, the time period for a claim is four years from the date of death. The loss claim can only be made by the ‘appropriate person’ (in most cases the executor) and therefore any asset transferred which is then sold at a loss will not qualify for relief. A claim cannot be made unless the loss is at least 5 per cent of the value at the date of death or £1,000, whichever is greater.

There is clearly room for tax planning here, not only regarding the timing of transfers but also whether assets should be sold or transferred and then sold. Which approach is best will depend on the tax situation of the beneficiaries as well as the estate.

Lastly, there is a similar relief which is available for lifetime gifts. Where an asset which has been gifted prior to death has fallen in value and is subject to IHT, a claim can be made for the reduced value to be substituted in the valuation of the estate at the date of death. This relief is only available if the transferred asset is still owned by the person to whom it was gifted or their spouse or civil partner.

Helping Your Executors

Being an executor is a demanding job at the best of times and a task that is made all the more difficult when the deceased has not given proper thought to the problems their executors will face.

Here are some of the things you can do to make sure your executors are able to administer your estate as efficiently as possible:

• Make a list of all your investments, bank accounts, premium bonds, insurances and other assets and keep it in a safe place. Put a copy with your will. Even if you subsequently close one of your accounts or surrender a policy, it is far easier for your executors to send a few letters asking for details of holdings that no longer exist than it is for them to deal with the discovery of an unexpected policy or bank account months down the line;
• Don't change your address without telling all concerned;
• Make sure that any ‘free insurance’ (these are quite common with some bank accounts, for example) or similar offers are retained and not thrown away;
• Put all the originals of your important documents in a safe place - such as a bank safe-deposit box - and keep copies in a single place, where they are secure, but can be found;
• Consider writing any life assurances or pension death benefits ‘in trust’, so that they are paid to your beneficiaries directly, rather than into your estate. This could lead to considerable Inheritance Tax savings and provide useful cash for beneficiaries at an early stage;
• Register your title to any land you own at the Land Registry, if you have not done so already. This may facilitate a subsequent transfer.
• Leave a letter outlining your wishes for your funeral arrangements, etc. Your executor will have the last say on these, but guidance from you can prevent unnecessary disagreements between family members.
• If you have significant 'online' assets, it is important to make sure these are identifiable and can be accessed by your executor.

Of course, your will and any other important documents such as enduring powers of attorney or lasting powers of attorney (EPA or LPA) should also be kept in a secure place where those who need to find them will be able to do so.

Dealing With an Insolvent Estate

One of the rules that applies to the administration of estates is that whilst a person appointed as executor under a will can refuse to accept the appointment, once an executor ‘intermeddles’ in the estate, in principle he or she cannot then ‘resign’ from the responsibility.

It is relatively easy inadvertently to carry out an act which demonstrates one’s acceptance of the rôle of executor. This normally causes few problems, but when the estate being administered is insolvent, matters can get very complicated indeed.

When the liabilities of the deceased exceed the available assets, the personal representatives of the insolvent estate have a duty to administer it in the best interests of the creditors, not the beneficiaries. Debts must be cleared before any legacies are paid. If this rule is breached, the executors may be required to refund the value of any legacies paid from the estate. Payments made to the executor by an insolvent estate may also have to be repaid, with interest.

One possible solution to this problem is for the executor to seek an Insolvency Administration Order (IAO), under which the estate administration is passed to a qualified insolvency practitioner.

The practical effect of an IAO is that the estate is administered in a way that is very similar to a bankruptcy. Any legal proceedings against the estate are stayed and the personal representatives are protected from personal claims. The IAO is deemed to commence at the date of death, and a statement of affairs must be prepared and a creditors’ meeting held.

The assets of the deceased are collected in and distributed according to the priorities set out in insolvency law. The beneficiaries of the estate rank last in order of right to be paid.

Who is Under the Influence?

The law recognises that some people (such as solicitors or accountants) have a high degree of influence over other people (their clients), since clients hire their professional advisers for the specific purpose of giving advice.

However, it is not normally with regard to professional advice that undue influence claims come into being. Normally these arise when someone has been influenced by another person to do something which is to the first person's detriment and which normally is for the benefit of the other.

In ordinary relationships it is hard to demonstrate that undue influence exists. To do so, the person asserting that undue influence has been exercised must demonstrate in regard to the transaction in question that:

• he or she placed trust in and confidence in the defendant; and
• that the transaction is not readily explicable bearing in mind the relationship subsisting between the parties.

The courts have over the years addressed themselves to this issue many times, but with the circumstances of each case varying substantially it has been difficult to establish anything more than general principles. The most important of these are that one must look at the nature of the transaction and the relationship between the parties to transfer to the defendant the burden of proof that undue influence was not applied.

Two recent cases have illustrated this. In the first, an elderly couple, one of whom was dying, bought their council house subject to a sixty percent discount and transferred the title to their son. In exchange for this, the son paid the mortgage and allowed them to live in it rent free. The son had 'driven' the arrangement. There was, it seemed, evidence of undue influence.

The son's successful rebuttal of the claim was based on the arguments that his parents would not have bought the property had he not taken the steps he did and furthermore, they acquired the right to stay in their home rent free for life. Under their agreement with their son, they would also regain their beneficial interest in the house if the son failed to make the mortgage payments.

The second case also dealt with a council house purchase. Here, a mother agreed (by means of a trust deed created at the time the house was bought) that when she sold the house, the sale proceeds would pass to her son. Her son paid the mortgage payments and she lived rent free in the property. Some years later she decided to terminate the agreement.

Here the circumstances were different. When she was a council tenant, the mother’s rent was paid through housing benefit. The practical effect of the arrangement she had entered into was the loss of both her security of tenure and the obligation on her landlord to keep the property in repair. If her son failed to make the mortgage payments, she could lose her home. In any event, the trust deed prevented her from selling the house. In this case, the court found that there was sufficient evidence of undue influence by the son. The absence of a clause that protected the mother if her son failed to make the mortgage payments apparently was a key difference between the two arrangements.

More recent cases have further muddied the waters as regards the circumstances in which undue influence will be able to be demonstrated. However, it is clear that it requires a considerable weight of evidence to be put before the court before it will rule that undue influence has occurred.

Cohabitees and Death - Who Can Claim?

Asset Valuation Problems - Chattels

When dealing with an estate, an increasing problem for executors is the valuation of assets in the form of the chattels of the deceased. In probate terminology, chattels are the ‘everyday’ assets such as furniture and ordinary possessions, as opposed to houses, investments and the like. These latter assets are relatively easy to value as estate agents and other specialist valuers can be called upon and in the case of listed investments, their market values at any point in time are readily available.

One difficulty is that an increase in wealth and estate values generally has brought an increasing number of estates into the Inheritance Tax (IHT) net. Where the value of the estate is well below the IHT threshold (£325,000 for 2016/7), even placing a relatively optimistic valuation on the chattels would probably not create an IHT liability. Where IHT must be paid, however, a realistic and justifiable open market value must be ascertained.

A second aspect of the rise in living standards is that it is more normal than it was in the past for people to have a substantial value in chattels. A side issue arising here is that many households may have an insured value for ‘contents’ which is well below the actual value of their household contents.

In general terms, when valuing assets for probate purposes, the appropriate valuation is the ‘open market value’ – the value for which they could be sold if a bargain were made between a willing buyer and a willing seller. Specialised assets, such as works of art, stamp, book and coin collections and so on, should be valued by a professional valuer if likely to be of significant value. Cars can be valued by reference to a trade guide and boats by a yacht broker.

Any items specifically mentioned in the will should be separately valued and, as a rule of thumb, individual items worth more than £500 should be assessed individually. Items which are widely traded (such as musical instruments) can, in some cases, be valued by reference to the prevailing prices on Internet auctions.

Another problem that is becoming more common occurs when there are a number of chattels, some of which may be valuable and some of which are not, and the relative value of each is not easy for the executors to know. Where the executor is likely to have the contents of the house cleared, it is possible for quite valuable chattels to be disposed of for little value or even thrown out.

When chattels are being distributed (say where there are three children, each entitled to a third of the chattels), it is also important for values to be known, because the distributions made will need to be equal unless agreed otherwise by the beneficiaries. Since many assets are in the form of sets (china and furniture for example), some horse-trading may need to be done and having an idea of the values of the different chattels will prove helpful.

Administering Estates - Procedures and Pitfalls

A recent survey has shown that more than one in ten people who are thought to have died intestate (i.e. without leaving a will) may actually have made a will and that a similar number of those who leave a will which is initially believed to be the last will they made did, in fact, make a later will.

Two of the main reasons for these findings are that many people change their mind about who should inherit their estate late on in life, or decide to make a will for the first time, but do not tell their relatives. This can lead to the will being challenged and, where there is a disputed will, the costs can mount up rapidly. Another reason for contentious probate is when a claim is made against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, which allows people who were dependent on a deceased person to claim against the estate if they are not provided for in the will.

Dying intestate, especially where there are significant assets, is a recipe for disaster, especially as the ability to plan for and mitigate Inheritance Tax (IHT) liabilities is foregone. The estate is distributed according to set rules of intestacy, which might lead to a division of assets very different from anything the deceased person would have wanted. For example, the spouse of the deceased will not inherit the whole estate unless its value is £250,000 or less, unless there are no children. The need to share an estate with children can, for example, require an elderly person to mortgage or sell their home to provide statutory inheritances for children.

Where assets are significant, it can get very complicated indeed. The recent death of the pop star Prince, who died intestate, is likely to tie up the family in legal red tape for many years.

The duties of the executor (or the administrator of an intestate estate) are onerous and should not be undertaken lightly. Once the person appointed has undertaken an act as executor, the role cannot be rescinded.

Duties of executors are to:

• collect the assets of an estate and settle its liabilities, such as taxes, funeral costs and so on;
• deal with any outstanding tax matters, including filing an IHT return and an Income Tax return if there is income during the period between death and distribution of the estate assets. Until any outstanding tax liabilities of the estate are dealt with, HM Revenue and Customs (HMRC) will not give clearance for the grant of probate to be issued;
• obtain the grant of probate (or letters of administration if there is no will) over the estate. This is done by filing the will with the probate registry together with the 'clearance' letter from HMRC; and
• carry out a distribution of the assets of the estate in accordance with the provisions of the final will or the rules of intestacy.

If executors carry out their duties incorrectly, they can be personally liable for the outcome, so it is important to be very careful to make sure the right will is being administered and that the estate is not being distributed until all liabilities have been met and no further claims are likely to arise. Keeping appropriate records of the transactions involved is also essential, as is an understanding of what expenses can legitimately be treated as estate expenses.

One method of disputing a will is to lodge a 'caveat' at the probate registry. This prevents a grant of probate from being made. A caveat lasts for six months, but can be renewed, and initiates a contentious court procedure. As no notice has to be given to an executor that a caveat has been applied for, the receipt of the court notice can come as an unpleasant surprise.

CGT and Shares in Estates Valuation Trap

In the UK, there are quite generous exemptions from Inheritance Tax (IHT) which apply to business assets. One problem with making use of such exemptions is the effect this may have on the subsequent value of the relevant assets for Capital Gains Tax (CGT) purposes. Under S274 of the Taxation of Chargeable Gains Act 1992, the ‘base cost’ value of such assets for future CGT purposes is the IHT value, provided that value has been ‘ascertained’.

This can be especially important when assets are aggregated for IHT purposes. For example, if a deceased person owned 15 per cent of an unquoted company’s shares in his own name and had an indirect interest (say through a trust in which he held a life interest) in another 40 per cent, the IHT valuation would be on the basis of having a controlling (greater than 50 per cent) interest. If the company is a trading company, Business Property Relief (BPR) would apply and in the case of a controlling interest, BPR is given at 100 per cent.

The Capital Taxes Office will not in such circumstances wish to enter into negotiations about the value of these shares and will simply regard the value transferred as nil. The value, therefore, will not have been ‘ascertained’, which may lead to a later dispute about the real value of the shares at the date of death, when the value may well be much harder to ascertain or at least agree.

One possible way around this dilemma is for the executors to submit a valuation of the shares, preferably with the benefit of a valuation by an appropriate professional. This is likely to be ignored by HM Revenue and Customs when dealing with the estate taxation, as 100 per cent BPR will apply. On a subsequent disposal of the shares, that valuation – probably unchallenged – can be used to help to justify the base cost in the CGT computation.