As from 9 October 2007 it has been possible for spouses to transfer their unused nil rate band allowances, so that any percentage of the nil rate band that was not used when the first spouse died can be carried forward and used on the death of the second spouse, in addition to his/her own nil rate band.
This relief applies:
- If the second spouse dies on or after 9 October 2007
- Irrespective of the date of death of the first spouse
- Even where the first spouse had few assets and could not have used his or her whole nil rate band in any event
- Even if the second spouse has remarried
- Even if the first spouse was non-UK domiciled
- Only applies on death of surviving spouse and cannot be used to reduce tax on lifetime gifts.
However, any additional nil rate band must be specifically claimed (with documentary evidence if available eg marriage certificate, Will and probate of first spouse to die) within 2 years of the end of the month in which the death occurred. This would generally be done in conjunction with the probate application.
Remarriage – Risk of losing transferable nil rate band
Getting married revokes any existing Will, so you (and your new spouse) should always take advice on making a new Will at this time.
If you are a widow or widower who has remarried, it is particularly important that your new Will is worded so as to ensure that any transferable nil rate band from your former spouse will be used on your death. You can only transfer a maximum of one nil rate band to your spouse, which means that without careful planning in advance, a significant inheritance tax saving can be wasted.
Ways of using an unused nil rate band include:
- A legacy in your Will to your children or grandchildren (but not to your new spouse). Correct wording of this legacy is crucial, or your children may end up inheriting a larger cash sum than you intended;
- A legacy in your Will on discretionary trusts (again, correct wording is essential);
- A legacy to a pilot trust or trusts already set up in your lifetime (beneficial where both you and your new spouse have unused nil rate bands from deceased spouses).
If you think this may apply to you and would like advice on maximising the inheritance tax allowances available to your family, please contact any member of our Tax, Trusts and Estates team: