What is a Probate Trust?

Author Image The Technical Team
5 minutes read
Last updated on 6th Apr 2019


Learn about the role Probate Trusts play to ease the process on death of an insurance bond applicant.

Key Points

  • A Probate Trust allows the funds to be speedily accessible to beneficiaries on the death of the settlor.
  • It’s for individuals who will not have inheritance tax to pay on their estate on death.
  • The Probate Trust gives the individual full access and control of their bond.

What is a Probate Trust?

A Probate trust is a way by which an individual can write an asset into trust and retain control and access over that asset. Its primary goal is to allow quick access to families on the death of the individual.

These trusts are suitable for clients who currently have no inheritance tax (IHT) liability and do not anticipate having one in the future. It is for clients who have a modest estate and want their family to have easy access to their bond on their death. A typical client might be an elderly widowed individual who requires lifetime access to their investment but thereafter wants to ensure quick access for beneficiaries without the need for Probate. The trust does not need to come to an end on the settlor’s death it can continue as long as is required by the trustees.

How is a Probate Trust structured?

Probate Trusts can be typically used with new bonds or existing bonds which are owned by a single individual - not normally jointly held bonds. An Absolute Probate Trust may cause problems because the settlor would be the sole beneficiary of the trust. This means on death of the settlor, the trustees of the trust could access the bond proceeds quickly, but the proceeds would then need to be distributed by the executors under the terms of the will/intestacy. The executors however would firstly need to obtain probate! This seems to defeat the purpose of having a trust and therefore a discretionary Probate Trust makes more sense. Normally it is possible to top up a bond that is held in a Probate Trust.

How is a Probate Trust set up?

In the main if it’s a new bond being placed into a new trust then both the bond application and the trust deed may be dated the same day. If an existing bond is being placed into trust, then the trust deed will be dated when the last person signs.

What access does the settlor and the beneficiaries have to the trust fund?

The settlor will have full access to the bond as he/she will automatically be included within the class of beneficiaries along with certain family members. The settlor will also be the first named trustee. The trustees can choose to distribute to any of the beneficiaries within the class.

Under a discretionary trust, it is up to the trustees to decide who will benefit and when they will benefit from the trust fund. As long as the beneficiary is in the class of beneficiaries the trustees can allocate funds to them. This is why clients should choose their trustees wisely as ultimately they will be dealing with the trust fund.

It is advisable for clients to lodge a letter of wishes with the trustees to give them some guidance, after their death, as to how they want the trust fund divided up. Remember that a discretionary beneficiary cannot demand monies from the trustees nor does this form part of their estate for divorce, bankruptcy or IHT while inside the trust.

What inheritance tax is payable when using a Probate Trust?

A transfer into a discretionary Probate Trust will be a chargeable lifetime transfer (CLT). This will create an entry charge if the value of the gift when added to any other CLTs made in the previous 7 years exceeds the current nil rate band. The CLT will drop out after 7 years as long as no PETs are created after the CLT. If a settlor creates a mixture of PETs and CLTs this can lead to a 14 year timeline. If a PET fails and becomes chargeable it pulls in any CLTs made within 7 years of the failed PET thus potentially going back 14 years.

Discretionary trusts may also be subject to periodic charges every 10 years and exit charges which are explained in our Estate Planning Guide on our website

Also, as the settlor is a potential beneficiary, this will give rise to a gift with reservation. The value of the bond will be in the settlor’s IHT estate at the time of his/her death. Because of the potential double charge (a CLT and a gift with reservation), a special relief known as 'Double Charge Relief' is available. This double charge is unlikely to be an issue in the vast majority of cases.

If a settlor wishes to top up / increment the bond, this creates a new transfer for IHT purposes i.e. a CLT, with the 7 year clock starting from that date.

Recent Developments

On 7 November 2018, HMRC issued a consultation document “The Taxation of Trusts: A review”. In simple terms, the consultation sets out the government’s thinking on making trusts fairer, simpler and more transparent. At the time of writing, the government is not making specific proposals for reform. Instead, the government will weigh up the views and evidence presented and consider the options for targeted reforms.

On 23 November 2018, the Office of Tax Simplification published its First Report regarding its review of the IHT regime. This concludes that too many people have to fill in IHT forms, with the process being complex and old fashioned. The recommendations therefore relate to administrative issues. The second report covering wider areas of concern (technical and design issues) will follow in Spring 2019.

Labelled Under:
Probate Trust

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