Since the introduction of the Transferrable Nil-Rate Band (TNRB), there have been questions on whether survivorship clauses should still be considered when drafting wills. The simple answer is yes, as the use of a survivorship clause can be beneficial in certain cases enabling the estate to save a lot of money, usually from inheritance tax (IHT). In this article, we will look at what effects including a survivorship clause can have on IHT.
Inheritance Tax – Unmarried couples
Inheritance tax is certainly the most beneficial reason to consider using a survivorship clause, especially for unmarried couples as they do not benefit from spousal exemption or the TNRB. If their collective estates exceed the Nil-Rate Band (NRB), including a survivorship clause could potentially assist in avoiding IHT becoming payable, or at least reduce the amount payable should both testators die in quick succession. Without a survivorship clause, then any gifts of the estate on first death would need to pass to the survivor before it can be distributed to any further beneficiaries. This will mean the assets of the first testator will be calculated for IHT on first death and again on second death.
John and Jane are an unmarried couple living together and they have mirror wills, leaving everything to each other on first death, then onto both of their siblings on second death. John’s estate is valued at £350k while Jane’s estate is valued at £200k. John dies first, and his will has left everything to Jane absolutely. Unfortunately, Jane also dies shortly afterwards and neither of their wills contained a survivorship clause. Because of this, and because John died first his executors will need to transfer his estate to Jane’s. Due to his estate being over the NRB, when his estate transfers to Jane’s IHT will be payable.
Jane’s estate will now be over the NRB too because of the inheritance her estate has received from John, therefore IHT will be payable, and some assets will be calculated for IHT and paid twice. If John and Jane’s wills contained a survivorship clause, IHT would have only made payable on John’s estate as it was only his estate that had an IHT liability, and the survivorship clause would have allowed his estate to bypass Jane’s as she would not have met the survivorship condition.
Inheritance Tax – Married Couples
In the case of married couples, the situation is the opposite of unmarried couples and including a survivorship may not be advisable. This can have IHT consequences if one spouse has assets above the NRB and one below as it could mean that the benefit of the spousal exemption and TNRB is not fully utilised. If the survivorship clause is included and the testators both died in quick succession, under a survivorship clause the estate of who died first would bypass the surviving spouse so the NRB cannot be transferred to them.
Using the example of John and Jane as before (except they are married now), if John died first with a survivorship clause in his will and Jane died shortly afterwards, IHT will be payable on his estate passing to his reserve beneficiaries. By not having a survivorship clause in the will, John’s estate could have passes to Jane’s which would have been free of IHT due to spousal exemption. When Jane’s estate passes to the reserve beneficiaries, her estate will also benefit from the TNRB from John with a total tax-free allowance of £650k. The allowance will be greater than the size of the estate (£550k) therefore there will be no IHT to pay.
The use of survivorship clauses should be considered closely as they could save a testators estate money, whether this is by including them or not. It is dependant on the circumstances of the clients. WillPack’s approach is to include survivorship clauses for all unmarried partners for IHT efficiency, and for the same reason to not include it for married couples.