SolvedIHTM16061 | Interests in possession: Finance Act 2006 and the new trust regime
From HM Revenue & Customs · Inheritance Tax Manual
The Finance Act 2006 made a number of fundamental changes to the Inheritance Tax treatment of most interests in possession in settled property. These changes affect any interest that came into existence on or after 22 March 2006.
An individual entitled to an interest in possession which came into existence before that date was, and still is, deemed to own the settled property in which their interest subsists, IHTA84/S49(1).
Where a person becomes beneficially entitled to an interest in possession in settled property created on or after 22 March 2006, that property will only be treated as forming part of their estate for IHT purposes if the interest is
an immediate post death interest,
a disabled person’s interest, or
a transitional serial interest.
Otherwise it will be relevant property, IHTA84/S49(1A) and S58(1).
The consequences of adding property or value to a pre-existing interest in possession settlement after 22 March 2006 are explained at (IHTM16074) onwards.
Immediate post death interest
An immediate post death interest is defined by IHTA/S49A as an interest in possession (IIP) in settled property to which an individual becomes beneficially entitled to an IIP under a Will or intestacy where:
they became beneficially entitled to the interest on the death of the testator or intestate, and
the settled property does not fall within S71A (trusts for bereaved minors - IHTM42815) and has never done so since the individual became beneficially entitled to the interest in possession, and
the interest is not a disabled person’s interest (IHTM42805) and has never been so since the individual became beneficially entitled to it
Disabled Person’s Interest
A disabled person's interest is defined by IHTA84/S89B. There are four sets of circumstances where such an interest may arise:
where there is no interest in possession in settled property, and the trusts secure that not less than half of the settled property which is applied during the life of the disabled person must be applied for their benefit;
where a disabled person becomes beneficially entitled to an interest in possession on or after 22 March 2006;
where a person with a condition that may reasonably be expected to lead to a disability settles property on trusts that provide that, if any of the settled property is applied during their lifetime, it must be applied for their benefit,
where a person with such a condition becomes beneficially entitled to an interest in possession on or after 22 March 2006 and they are the settlor.
Transitional serial interest
A transitional serial interest is defined by S49B, S49C, S49D and S49E. There are three sets of circumstances where such an interest may arise.
The transitional period to 5 October 2008 [S49C]
Where a person is beneficially entitled to an interest in settled property - 'the current interest', it will be a transitional serial interest if:
The settlement commenced before 22 March 2006,
Immediately before that date, the person or another person had an interest in possession in the settlement - 'the prior interest',
'the prior interest' came to an end on or after 22 March 2006 but before 5th October 2008,
The person became beneficially entitled to “the current interest” at this time, and
Originally the cut-off date for the period in which a transitional serial interest could be created was 6 April 2008. This was later extended by a further 6 months.
Surviving spouse or civil partner settlements [S49D]
Where a person is beneficially entitled to an interest in possession in settled property - 'the successor interest', it will be a transitional serial interest if:
the settlement commenced before 22 March 2006,
immediately before that date, the person’s spouse or civil partner had an interest in possession in the settlement - 'the previous interest',
'the previous interest' came to end on the death of the spouse or civil partner on or after 5 October 2008,
the person became beneficially entitled to 'the successor interest' at this time, and
Life insurance trusts [S49E]
Where a person is beneficially entitled to an interest in possession in settled property – 'the present interest' – and, on their becoming entitled to the interest, the settled property consisted of, or included, rights under a contract of life insurance, it will be a transitional serial interest if:
the settlement commenced before 22 March 2006, and
immediately before that date, the settled property consisted of, or included, a contract of life insurance, and the person or another person had an interest in possession in the settlement – ‘the earlier interest’;
either 'the earlier interest' came to an end on the death of a person on or after 5th October 2008, and
the person became beneficially entitled to 'the present interest' at this time, or on the coming to an end of a later interest in possession if this, and any other interests in possession in between times, came to an end on the death of the person beneficially entitled to them, or:
the person became beneficially entitled to 'the present interest' on the coming to an end of a transitional serial interest under S49C, or on the coming to an end of a later interest in possession if this, or any other interests in possession in between times, came to an end on the death of the person beneficially entitled to it, and
the first in the chain of interests in possession was a transitional serial interest under S49C.
In addition
the rights under the contract of life insurance must have been comprised in the settlement throughout the period beginning with 22 March 2006 and ending on the date on which the person became entitled to 'the present interest', and