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How A Survivorship Clause Can Cost £130,000 or More

The inclusion of survivorship clauses in wills is a common practice aimed at streamlining estate distribution. However, there are instances where such clauses may not be advisable. In this article, we explore the nuances of survivorship clauses, their typical benefits for married couples, potential drawbacks from a tax planning perspective, and alternative solutions to address these concerns.

 

Understanding Survivorship Clauses:

A survivorship clause, also known as a “common disaster clause,” is a provision in a will stipulating that a beneficiary must survive the testator (the person making the will) by a specified period, typically 30 days, in order to inherit the assets. This clause is commonly included to address scenarios where both the testator and beneficiary die simultaneously or within a short timeframe.

 

Typical Benefits of Survivorship Clauses:

Streamlined Estate Distribution: Survivorship clauses help ensure that assets are distributed according to the testator’s intentions, even in the event of simultaneous or near-simultaneous deaths.

Protection Against Uncertainty: By requiring a period of survival, survivorship clauses provide clarity and certainty in estate planning, reducing the risk of disputes or unintended outcomes.

Reduced Costs: the same assets are not distributed through probate twice in quick succession saving legal fees and potentially tax.

 

Potential Drawbacks from a Tax Planning Perspective:

While survivorship clauses offer benefits in estate administration, they may not always align with optimal tax planning strategies, particularly in scenarios involving inheritance tax (IHT) considerations. For married couples, where both parties are UK-domiciled, survivorship clauses could result in:

Loss of Transferable Nil Rate Band: This valuable benefit potentially saves up to £130,000 in tax but can only be received by the surviving spouse. Therefore if a surviving spouse dies within the survivorship period owning assets of less than the nil rate band, some tax benefits are lost, leading to lower amounts for the heirs.

Missed Opportunity for Spousal Exemption: By bypassing the opportunity for assets to qualify for the spousal exemption upon the first spouse’s death, survivorship clauses may inadvertently increase the overall tax burden on the estate. An example of this would be the failure to fully utilise the Residential Nil Rate Band.

 

Alternative Solutions to Address Tax Planning Concerns:

Nil Rate Band Discretionary Trusts: Establishing nil rate band discretionary trusts in wills can help maximise the utilisation of both spouses’ Nil Rate Bands, effectively doubling the threshold for inheritance tax (IHT) purposes.

Spousal Bypass Trusts: Implementing spousal bypass trusts allows assets to bypass the surviving spouse’s estate, preserving the deceased spouse’s NRB and minimising potential IHT liabilities in the survivor’s estate.

Deed of Variation: with the agreement of all beneficiaries under a will, it is possible for the terms of the Will to be varied after their death.

 

Summary

Survivorship clauses serve a valuable purpose in ensuring orderly estate distribution. However, like all clauses used in Wills, they must be used thoughtfully. It is essential to take the circumstances of each testator into account when drafting a will. In the case of survivorship clauses, this is particularly important for married couples who have unevenly distributed estates.

 

By understanding the potential drawbacks of survivorship clauses from a tax planning perspective and exploring alternative solutions such as nil rate band discretionary trusts and spousal bypass trusts, individuals can achieve greater tax efficiency and preserve more of their estate for future generations.

 

If you would like to know more, please contact me at stuart@greatbritishwills.com or on WhatsApp at +971 50 594 5217.

#SurvivorshipClauses #EstatePlanning #TaxConsiderations #InheritanceTax #LegalInsights

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