nil rate band discretionary trusts - what are the problems?
The changes to inheritance tax rules announced last October in the pre budget speech allowed the transfer of unused allowances between spouses and civil partners following the first death. Yet many people with existing nil rate band discretionary trusts might have considered the change to be largely irrelevant, but it would be a mistake to ignore the potential effects of this change.
Under the new rules, if the first spouse who dies now with a nil rate band of £312,000 gifts this into a nil rate band trust as a result of their will, and then a few years later the surviving spouse dies when the nil rate band has increased to say £400,000, then the total amount of money that is exempt from 40% inheritance tax is £712,000.
Under the new rules however, if the first spouse simply passed their assets to the surviving spouse, then on the second death, the estate has the benefit of two nil rate bands, but at the then current rate. Under the same scenario of using a £400,000 nil rate band, this would equate to a total of £800,000 that would avoid inheritance tax at 40%.
Of course, if the asset was placed in the nil rate band trust and it grew at a greater rate than the rise in the nil rate threshold then it might still offer a better solution. Yet in my experience, nil rate band trusts are for couples who really cannot afford to physically give the money away, and tend to want a very low risk investment within the trust, it is after all there to provide additional income for the surviving spouse. In this regard I would suggest that the nil rate band trust is no longer needed in a number of instances. The legislative changes have brought about a similar end result, and removed the need for an additional layer of complexity that a trust brings.


