Published December 2017
This country-specific Q&A provides an overview to private client law in the United Kingdom.
It will cover taxes, succession laws, wills, trusts and their structures.
This Q&A is part of the global guide to Private Client. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/private-client/
Which factors bring an individual within the scope of tax on income and capital gains?
1.1 The main factors which bring an individual within the scope of UK tax on income and capital gains are residence (§1.5-1.7), domicile (§1.9), the location of his assets, and the location of the sources of his income.
1.2 An individual who is not UK-resident (§1.5-1.7) and is not temporarily non-resident (§1.8) has limited exposure to income tax (§2.1) and capital gains tax (§2.6). His exposure to income tax is limited to certain kinds of income having a UK source, e.g. rental income from UK real property (§3.2), profits of a trade carried on in the UK, employment income insofar as duties are performed in the UK (§3.1), and UK royalties (§3.3). His exposure to capital gains tax is limited to chargeable gains (§2.7) on the disposal (§2.8) of UK residential property (§8.3) and of UK assets used in a trade that he carries on in the UK. Any such exposure to income tax and capital gains tax is subject to relief under an applicable double tax treaty and to unilateral relief.
1.3 By contrast, an individual who is UK-resident (§1.5-1.7) is exposed to income tax (§2.1) in respect of his worldwide income and to capital gains tax (§2.6) on the disposal (§2.8) of assets wherever situated. He may also be exposed to income tax where income, and capital gains tax where capital gains, of trustees (§20.4; §20.6) or of a non-UK resident company (§20.6; §20.8) are treated as arising to him for tax purposes. In many cases, his exposure is subject to relief under an applicable double tax treaty, unilateral relief, and (if available) the remittance basis (§10). The remittance basis is not available to individuals who are domiciled (§1.9) or deemed domiciled (§1.10) in the UK.
1.4 An individual who is temporarily non-resident (§1.8) may be charged to income tax (§2.1) and capital gains tax (§2.6) on income and capital gains arising during the period of non-residence, with such income and capital gains treated as arising in the tax year (§2.13) of return.
1.5 The residence status of an individual must be determined for each tax year (§2.13). Whether an individual is UK-resident or not for a given tax year depends principally on the number of midnights that he spends in the UK in that tax year.
1.6 An individual who has not been UK-resident (§1.5-1.7) in any of the three previous tax years (§2.13) will not become UK-resident for a tax year if he spends fewer than 46 midnights in the UK in that tax year. Any individual who spends 183 or more midnights in the UK in a tax year will usually be UK-resident in that tax year. An individual who spends fewer than 183 midnights in the UK in a tax year may still be UK-resident for that tax year, for example, where his only home is in the UK or he has full-time work in the UK. In some circumstances, the residence status of an individual for a tax year depends on the number of midnights spent in the UK and the number of ties (§1.7) that the individual has with the UK. The more midnights the individual spends in the UK in a tax year, the fewer ties are necessary for him to be UK-resident for that tax year.
1.7 The ties which are relevant to residence are having a UK-resident (§1.5-1.7) spouse, civil partner or minor child, having available accommodation in the UK, performing more than three hours work in the UK on 40 or more days in the tax year (§2.13), spending 91 or more midnights in the UK in one or both of the two previous tax years, and spending more midnights in the tax year in the UK than in any other country.
1.8 An individual is temporarily non-resident if, following a period of residence, he is non-UK resident (§1.5-1.7) for a period of five years or less, and he has been UK-resident (§1.5-1.7) in at least four of the seven tax years (§2.13) before the tax year in which the period of non-residence begins.
1.9 For the general purposes of English law every individual has at any given time a domicile (§1.9) in one country alone. The domicile of an individual depends, in the first place, on the domicile that his father or (in some circumstances) mother had at the time of the individual's birth (known as the individual's "domicile of origin"). Upon attaining the age of 16, the individual may change his domicile to that of another country (his domicile of choice) by residing in that country with the intention of residing there permanently. If, later, he ceases to reside in that country and to have that intention, his domicile may revert to his domicile of origin, unless he establishes another domicile of choice.
1.10 For the purposes of income tax (§2.1) and capital gains tax (§2.6) an individual is deemed domiciled in the UK if he has been UK-resident (§1.5-1.7) for at least 15 of the 20 previous tax years (§2.13) and has been UK-resident for a tax year beginning after 5 April 2017. In addition, an individual who was born in the UK and had his domicile (§1.9) in the UK at the time of his birth is deemed domiciled in the UK for the purposes of those taxes in any tax year for which he is UK-resident.
What are the taxes and rates of tax to which an individual is subject in respect of income and capital gains and, in relation to those taxes, when does the tax year start and end, and when must tax returns be submitted and tax paid?
2.1 Subject to the territorial limits and the reliefs mentioned in §1 and subject to the availability of the remittance basis (§10), income tax is charged on the total income of an individual for each tax year (§2.13). In relation to rental and trading income, expenditure incurred exclusively for the purposes of the rental business or (as the case may be) trade is generally deducted in computing this total, but there is a restriction on the deductibility of interest paid by landlords of let residential property.
2.2 Of the individual's total income for the tax year (§2.13), income falling within his personal allowance (§2.3) suffers no income tax (§2.1); the next £33,500 suffers income tax at 20% (or 7.5% for dividends); the next £116,500 suffers income tax at 40% (or 32.5% for dividends); and the balance suffers income tax at 45% (or 38.1% for dividends). In the application of these rates and bands to an individual's income, dividends are treated as the top slice of that income. Scotland has power to apply different rates and bands to Scottish taxpayers (§27.3).
2.3 An individual's personal allowance is normally £11,500, but is reduced by £1 for every £2 by which his total income for the tax year (§2.13) exceeds £100,000. No personal allowance is available to an individual who claims the remittance basis (§10) for the relevant tax year. The personal allowance is only available to certain non-UK resident individuals (e.g. residents of the Channel Islands and the Isle of Man, EEA nationals, and individuals benefiting from particular kinds of double tax treaty with the UK).
2.4 In addition, an individual may receive £5,000 of dividends in each tax year (§2.13) without any charge to income tax (§2.1), and modest annual tax-free allowances are available for interest of individuals whose total income for the relevant tax year does not bring them into the 45% income tax rate band.
2.5 Subject to similar territorial limits as described in §1 in relation to income tax (§2.1), individuals with income from an employment or self-employment must also pay national insurance contributions on that income. Broadly, an employee whose income for the tax year (§2.13) exceeds £8,164 pays national insurance contributions at 12% on the excess up to £45,000, and at 2% on the excess over £45,000. Different rates apply to the self-employed. There is a link between eventual entitlement to state pension and the number of tax years for which national insurance contributions have been paid.
2.6 Subject to the territorial limits and reliefs mentioned in §1 and §2.4, capital gains tax is charged on the total chargeable gains (§2.7) of an individual for each tax year (§2.13), after deducting allowable losses (§2.10) and the annual exempt amount (§2.10).
2.7 Broadly, chargeable gains are capital gains on the disposal (§2.8) of most kinds of assets, with the exceptions including cars, chattels with a predictable life of less than 50 years, and chattels for which the consideration does not exceed £6,000 (subject to special rules for collections of chattels).
2.8 The disposal of an asset includes the sale or gift of the asset, certain other occasions on which a capital sum is derived from an asset, and events deemed to involve a disposal, such as the appropriation of an asset to trading stock.
2.9 To compute the chargeable gain (§2.7) on the disposal of an asset, the individual should normally take the consideration or deemed consideration (§5.10) for the disposal of the asset and deduct expenditure incurred on the acquisition, enhancement or disposal of the asset.
2.10 The allowable losses that may be deducted are capital losses (computed in the same way as chargeable gains §2.9) realised in the relevant tax year (§2.13) and, if unused, in previous tax years. The annual exempt amount is £11,300 but is not available to an individual who claims the remittance basis (§10).
2.11 Once the total of the individual's chargeable gains has been determined for the tax year (§2.13), and the allowable losses and the annual exempt amount (§2.10) have been deducted, the resulting figure is charged to capital gains tax at the relevant rate. The top rate of capital gains tax is 20%, except for capital gains on the disposal of residential property or carried interest, where it is 28%. These rates may be reduced to 10% and 18% respectively in the case of an individual who does not pay income tax at 40% (or 32.5% for dividends), but the amount of the chargeable gains of such an individual is brought into account in determining whether the higher capital gains tax rates apply to him.
2.12 Individuals are entitled to invest up to an annual limit (£20,000 for the tax year (§2.13) ending 5 April 2018) in an individual savings account ("ISA") consisting of cash or shares, and can achieve shelter from income tax (§2.1) on the interest and dividends, and from capital gains tax (§2.6) on the capital gains, realised in that account. In addition, individuals can achieve shelter from income tax and capital gains tax by making contributions (subject to annual and lifetime limits) to a registered pension scheme, but the funds so contributed can only be used to provide retirement benefits which (apart from a 25% tax-free lump sum) will normally fall within the scope of income tax when paid. Other reliefs from income tax and capital gains tax exist to encourage business investment by individuals.
2.13 The tax year begins each 6 April and ends on the following 5 April. In some circumstances a tax year may be split into a period of residence and a period of non-residence, with income and capital gains arising during the period of non-residence not charged to UK tax. For example, a tax year may be split if an individual with no previous connections with the UK comes to live in the UK and arrives part of the way through that tax year.
2.14 Individuals who have to submit a tax return must do so, and pay any income tax or capital gains tax that is due, by 31 January following the end of the relevant tax year (§2.13). In some circumstances, six-monthly advance payments of tax (known as "payments on account") must be made, and these fall due on 31 January during the relevant tax year and 31 July following the end of the relevant tax year.
Are withholding taxes relevant to individuals and, if so, how, in what circumstances and at what rates do they apply?
3.1 Income tax (§2.1) and national insurance contributions (§2.5) are generally deducted at source from the income of an employment. The obligation to make these deductions normally falls on the employer, but many employers delegate compliance with this regime to an agent. An employee who has suffered such deductions at source does not normally have to file a tax return unless he has other kinds of income or capital gains for the tax year (§2.13).
3.2 Income tax (§2.1) must prima facie be deducted from payments of rent for UK real property to a non-UK resident (§1.5-1.7) landlord. However, under an arrangement known as the "non-resident landlord scheme", it is possible for such a landlord to apply to HMRC to receive the rent gross, provided that he can satisfy HMRC that he has complied with all his UK tax obligations, including the obligation to file tax returns and pay the income tax due on the rent.
3.3 Income tax (§2.1) must generally be deducted at source from royalty payments.
Is there a wealth tax and, if so, which factors bring an individual within the scope of that tax, at what rate or rates is it charged, and when must tax returns be submitted and tax paid?
There is no wealth tax in the UK.
Is tax charged on death or on gifts by individuals and, if so, which factors cause the tax to apply, when must a tax return be submitted, and at what rate, by whom and when must the tax be paid?
5.1 The principal tax on gifts and transfers on death is inheritance tax, which is a charge on transfers of value (§5.2).
5.2 A transfer of value is a disposition by which the value of the individual's estate (§5.3) is reduced. On death, an individual is deemed to have made a transfer of value equal to the value of his estate immediately before his death.
5.3 Generally, the estate of an individual includes all the property to which he is beneficially entitled, property which he has given away but from which he continues to benefit, and (in some circumstances) trust property in which he has a life interest (§19.2). However, the estate of an individual who is neither domiciled (§1.9) nor deemed domiciled for inheritance tax purposes (§5.9) in the UK excludes property situated outside the UK so that, for such an individual, inheritance tax is only relevant to the extent of his assets situated in the UK. Non-UK property representing the value of UK residential property is for this purpose generally treated as if situated in the UK.
5.4 A transfer of value (§5.2) by way of a lifetime gift to an individual made seven years or more before the death of the donor is not charged to inheritance tax on the donor's death, provided the donor does not continue (after making the gift) to benefit from the property included in the gift. Transfers of value by way of lifetime gifts made during the last seven years of the donor's life are brought into account on the donor's death and added to the deemed transfer of value which takes place on the death itself (§5.2). The total of these transfers of value is then charged to inheritance tax (except to the extent that a relief or exemption applies), with an amount equal to the individual's available nil-rate band (§5.8) being charged at a nil rate and the balance being charged at 40%, subject to a reduction in the rate payable in respect of gifts made to individuals more than three years before the death.
5.5 Inheritance tax which is charged on the death of an individual is normally a liability of his personal representatives (§17.1). The tax must normally be paid no later than six months after the end of the month in which the death occurred, but may in some circumstances be paid in 10 equal annual instalments (together with interest on the unpaid instalments) if it is charged on land, certain kinds of shares or securities, or a business. Inheritance tax due on a death must be paid before a grant of probate (§17.1) can be issued to the personal representatives. Subject to exceptions for low value and simple estates, an inheritance tax return must be submitted to HMRC with details of the assets and liabilities of the estate. In practice, the personal representatives will file this return with HMRC in advance of the date on which the tax itself falls due, although the deadline for filing the return falls 12 months after the end of the month in which the death occurred.
5.6 Where a lifetime gift is charged to inheritance tax because the donor dies within seven years of making the gift, the tax liability falls on the donee, with a secondary liability falling on the personal representatives (§17.1) if the tax remains unpaid 12 months after the end of the month in which the death occurred.
5.7 Where an individual makes a transfer of value (§5.2) during his lifetime to the trustees of a trust (other than a bare trust or certain favoured kinds of trust), there is an immediate charge to inheritance tax at 20% to the extent that the individual's available nil-rate band (§5.8) is exceeded, with further tax being charged if the individual dies within seven years of making the transfer of value.
5.8 The full nil-rate band is normally £325,000, but is reduced by the value of chargeable transfers made by the individual in the previous seven years, and may be increased where the individual has been predeceased by a spouse or civil partner who did not use (or completely use) his or her nil-rate band. Where a home is left on death to a descendant or descendants and is within the scope of inheritance tax, the deceased's nil-rate band is increased by an amount called the residence nil-rate band (RNRB). The RNRB is £100,000 for a death in the tax year (§2.13) ending 5 April 2018, will increase by £25,000 each tax year until it reaches £175,000 for a death in the tax year ending 5 April 2021, can be further increased where the deceased was predeceased by a spouse or civil partner who did not use (or completely use) his or her RNRB, and is progressively reduced where the value of the deceased's estate (§5.3) exceeds a limit which currently stands at £2,000,000.
5.9 An individual is deemed domiciled for inheritance tax purposes in the UK in a particular tax year (§2.13) if he has been UK-resident (§1.5-1.7) for at least 15 of the 20 tax years immediately preceding the relevant tax year and for at least one of the four tax years ending with the relevant tax year. An individual (called a "formerly domiciled resident") is also deemed domiciled for inheritance tax purposes in a particular tax year if he was born in the UK with a domicile of origin in the UK (§1.9), is UK-resident for the relevant tax year, and was UK-resident for at least one of the two tax years immediately preceding the relevant tax year.
5.10 A gift made during the donor's lifetime is a disposal (§2.8) for the purposes of capital gains tax (§2.6), and is normally deemed for those purposes to have been made for a consideration equal to its market value at the date of the gift (but see §6.2). An asset passing on death is rebased to its market value (as at the date of the death) for the purposes of capital gains tax, with no capital gains tax arising on the death itself, so that an individual inheriting the asset takes it at a base cost which, for the purposes of capital gains tax on a subsequent disposal, is equal to its market value at the date of the death.
Are tax reliefs available on gifts (either during the donor’s lifetime or on death) to a spouse, civil partner, or to any other relation, or of particular kinds of assets (eg business or agricultural assets), and how do any such reliefs apply?
6.1 Transfers between spouses and civil partners (whether during life or on death) are generally exempt from inheritance tax (§5). However, this exemption is limited to £325,000 if, at the time of the transfer, the transferor is domiciled (§1.9) or deemed domiciled for inheritance tax purposes (§5.9) in the UK and the transferee has neither such status. If the transferee elects, after the transferor's death, to be treated for inheritance tax purposes as domiciled in the UK, the exemption is unlimited, but the transferee then suffers the other inheritance tax consequences of being treated as domiciled in the UK, unless and until he has completed a period of 4 successive tax years (§2.13) of non-UK residence (§1.5-1.7) beginning any time after the date of the election.
6.2 For the purposes of capital gains tax (§2.6), while the disposal of an asset by way of gift is generally deemed to be for a consideration equal to the market value of the asset (§5.10), where the gift is between spouses or civil partners who are living together, the donee's base cost in the asset is generally deemed to be the donor's, so that no chargeable gain (§2.7) arises.
6.3 Lifetime gifts are exempt from inheritance tax (§5) if their value does not exceed £3,000 in each tax year (§2.13), and this exemption can, to the extent unused, be carried forward to the next tax year. In addition, lifetime gifts made by an individual in any one tax year to any one person are exempt from inheritance tax if their total values do not exceed £250. Further, regular lifetime gifts made by an individual out of his spare income are exempt from inheritance tax if they are part of his normal expenditure and do not diminish his normal standard of living. Gifts within certain limits made on the occasion of a marriage or civil partnership (e.g. a gift of up to £5,000 by a parent to a child who is getting married) are exempt from inheritance tax.
6.4 Agricultural property may enjoy complete relief from inheritance tax (§5) on a lifetime transfer or on death. Relieved agricultural property includes not only farmland but also cottages, farm buildings and farmhouses of a character appropriate to the land, but in each case only to the extent of the agricultural value of such assets (and not, for example, in respect of development value). For the relief to be available, the agricultural property must have been (i) occupied by the transferor for the purposes of agriculture for two years before the date of the transfer or (ii) owned by him throughout the period of seven years ending with that date and occupied throughout that period (by him or another) for the purposes of agriculture.
6.5 Business property may also enjoy complete relief from inheritance tax (§5) on a lifetime transfer or on death. The relieved property may consist of shares in a company which carries on the business (or in its holding company), or of a direct interest in the assets of a business. The full relief is not available in respect of shares listed on a recognised stock exchange, with the Alternative Investment Market (AIM) not being "recognised" for this purpose. The relief is not available where the business consists wholly or mainly of dealing in securities, stocks or shares, land or buildings or making or holding investments. The relief is restricted where non-business assets or surplus cash are held by the company. For the relief to be available, the business property must have been owned by the transferor for two years before the date of the transfer.
Do the tax laws encourage gifts (either during the donor’s lifetime or on death) to a charity, public foundation or similar entity, and how do the relevant tax rules apply?
7.1 Gifts made by an individual, whether during his life or on death, to a charity (§26.1) which is recognised for UK tax purposes (§7.3) are exempt from inheritance tax (§5). In addition, where an individual leaves at least 10% of the value of his chargeable estate (§5.3) to a charity which is recognised for UK tax purposes, a lower rate of inheritance tax (36%) is applied when calculating any inheritance tax charged on the balance of his estate.
7.2 Further, individuals may on certain conditions obtain relief from income tax (§2.1) and capital gains tax (§2.6) on gifts to charities which are recognised for UK tax purposes (§7.3). For example, a gift out of taxed income by an individual to such a charity will normally enable the individual and the charity, between them, to reclaim all the income tax which the donor paid on the gross amount of the gift.
7.3 Charities which are recognised for UK tax purposes include all charities established in the UK which are registered with either the Charity Commission for England and Wales (§26.5) or the Scottish Charity Regulator, and (broadly) charities having equivalent status in other EU member states, or in Iceland, Norway or Liechtenstein, provided that such charities are registered with HMRC.
How is real property situated in the jurisdiction taxed, in particular where it is owned by an individual who has no connection with the jurisdiction other than ownership of property there?
8.1 The value of real property situated in the UK (and of non-UK property representing the value of UK residential property) is included in the estate (§5.3) of the owner for the purposes of inheritance tax (§5) even where the owner is neither domiciled (§1.9) nor deemed domiciled for inheritance tax purposes (§5.9) in the UK, although debt (such as a mortgage loan from a bank used to purchase the property) may generally be deducted from that value.
8.2 Rent derived by an individual (whether or not UK-resident (§1.5-1.7)) from real property situated in the UK is subject to income tax (§2.1; §3.2).
8.3 An individual (whether or not UK-resident (§1.5-1.7)) who realises a chargeable gain (§2.7) on the disposal (§2.8) of UK residential property is charged to capital gains tax (§2.6), subject to an exemption which is available (on conditions) where the property has been his main or only residence throughout his period of ownership.
8.4 An annual tax known as the annual tax on enveloped dwellings ("ATED") is charged, subject to reliefs, on companies which own UK residential property with a value of £500,000 or more.
8.5 Individuals (whether or not UK-resident (§1.5-1.7)) purchasing UK real property must normally pay stamp duty land tax on the purchase price. This tax is charged at progressive rates, with the highest rate for an individual applying to the excess of the price over £1,500,000, and generally being 13% (or 15% if the individual already has at least one residential property anywhere in the world and the new property is not to replace his main home).
8.6 Local authorities impose council tax on UK residential property, with the rate of tax depending principally on an assumed capital value of the property (based on 1991 prices for England and Scotland and 2003 prices for Wales).
8.7 Business rates are charged on most UK non-domestic properties, such as shops, offices, public houses, warehouses, factories, holiday rental homes and guest houses. Business rates are based on the open market rental value of the property on 1 April 2015, which is estimated by the Valuation Office Agency.
Are taxes other than those described above imposed on individuals and, if so, how do they apply?
Purchasers of shares registered in the UK may have to pay stamp duty or stamp duty reserve tax at 0.5% on the consideration. Individuals who make supplies of goods or services in the course of a business may have to charge value added tax ("VAT") at up to 20% on their supplies and account for that tax to HMRC. VAT and customs duties may be charged on the import of goods from outside the European Union. Excise duties are generally charged on motor fuel, alcohol, tobacco, betting and vehicles.
Is there an advantageous tax regime for individuals who have recently arrived in or are only partially connected with the jurisdiction?
10.1 The remittance basis of UK taxation is available to a UK-resident (§1.5-1.7) individual who is neither domiciled (§1.9) nor deemed domiciled (§1.10) in the UK. The effect of claiming the remittance basis for a tax year (§2.13) is that the non-UK income and non-UK chargeable gains (§2.7) of the individual for that tax year are only taxed if and to the extent that they are remitted to the UK (§10.3).
10.2 An individual who has been UK-resident (§1.5-1.7) for a certain number of tax years (§2.13) must pay an annual charge to claim the remittance basis (§10.1). The annual charge is £30,000 for an individual who has been UK-resident for seven or more of the previous nine tax years, and £60,000 for an individual who has been UK-resident for 12 or more of the previous 14 tax years.
10.3 Broadly, the non-UK income and non-UK chargeable gains (§2.7) of an individual are (subject to certain reliefs and exemptions) remitted to the UK if they are (or anything deriving directly or indirectly from them is) brought to, or received or used in, the UK by (or for the benefit of) the individual, or a spouse, civil partner, cohabitant, minor child or minor grandchild of the individual, or any of a class of other prescribed persons closely connected with the individual. Relief may be available where non-UK funds are brought to the UK for investment in a trading company.
What steps might an individual be advised to consider before establishing residence in (or becoming otherwise connected for tax purposes with) the jurisdiction?
11.1 Before becoming UK-resident (§1.5-1.7), an individual should consider certain preparatory steps. In view of the territorial limits described in §1.2, such steps should normally be carried out in a tax year (§2.13) before the tax year in which the individual first becomes UK-resident, and reliance should not be placed on split year treatment (§2.13). It is assumed below that the individual is not domiciled (§1.9), deemed domiciled (§1.10) or deemed domiciled for inheritance tax purposes (§5.9) in the UK, and is not temporarily non-resident (§1.8). Before taking any step such as mentioned below, the tax consequences of the step in any non-UK jurisdiction should be considered.
11.2 The individual should consider realising income or capital gains so as to create a cash fund (often called "clean capital"), which he should be able to use in the UK without giving rise to UK tax charges, and placing that clean capital in a separate non-UK bank account. Arrangements could be made with the bank for any income produced by the clean capital to be paid into a separate account and not remitted to the UK (§10.3), with all remittances to the UK being from the clean capital account only.
11.3 The individual should review his worldwide property, including shareholdings in companies and life insurance policies, and the terms (and historical income and capital gains) of existing trusts (§19.1) and foundations, to ensure that his becoming UK-resident (§1.5-1.7) will not give rise to adverse tax treatment of these structures. The individual might consider steps to rebase the value of any assets standing at a capital gain. Consideration should be given to taking a substantial dividend from a wholly-owned company, or winding up such a company or an existing family trust, to create clean capital (§11.2) and avoid heavy UK tax charges that might arise on distributions from such structures during the individual's period of UK residency. Funds extracted in this way and not required for expenditure during the period of UK residency might be used to establish a new trust or foundation structure, potentially allowing those funds to be held tax-efficiently on a long-term basis for the benefit of future generations.
11.4 The individual should ensure that any directorships do not give rise to UK tax charges, as the exercise in the UK of control over a non-UK company may bring any profits of that company within the scope of UK taxation and cause various UK tax regimes to apply in relation to that company.
11.5 Assuming the individual has a non-UK domicile (§1.9), he should protect this status by ensuring that at all times he has evidence of a plan, and of practical preparation, to leave the UK after a limited period or on the occurrence of an event such as retirement.
What are the main rules of succession, and what are the scope and effect of any rules of forced heirship?
12.1 To the extent that English law governs succession to an adult individual's estate, he is free to leave that estate to whomsoever he wishes by making a valid Will, subject only to a claim under the regime described in §12.3.
12.2 If an individual dies without a valid Will disposing of his whole estate, then to the extent that English succession rules apply and the property does not pass to a surviving beneficial joint tenant (§16.2), the intestacy rules (§16.2) will generally govern succession to his estate (or to the part of this estate not disposed of by a valid Will).
12.3 Certain categories of person (including a spouse, civil partner, former spouse, former civil partner, unmarried cohabitant or child of the deceased, or anyone else who was being maintained by the deceased before the death) may be able to bring a claim against the personal representatives (§17.1) of an individual who died domiciled (§1.9) in England and Wales if reasonable financial provision is not made for that person under the deceased's Will or under the intestacy rules (§16.2) or otherwise as a result of his death. Such a claim may also be brought in relation to property which the deceased and another person owned as beneficial joint tenants (§16.2). It should be noted that no such claim may be brought under English law against the personal representatives of an individual who died domiciled outside England and Wales.
Is there a special regime for matrimonial property or the property of a civil partnership, and how does that regime affect succession?
13.1 For succession purposes, there is no special regime for matrimonial property or the property of a civil partnership.
13.2 Where an individual's estate (or part of it) is not disposed of on death by a valid Will, then a surviving spouse or civil partner will gain an interest in the estate (or that part) under the intestacy rules (§16.2). A cohabitant who was not a spouse or civil partner of the deceased is not entitled to any portion of the deceased's estate under the intestacy rules.
13.3 A spouse or civil partner may have a claim against the personal representatives (§17.1) of an individual who died domiciled (§1.9) in England and Wales (§12.3).
13.4 For matrimonial law purposes, the courts of England and Wales have wide discretion to divide property on divorce or dissolution of a civil partnership. On the separation of a cohabiting couple, the cohabitants have no right against each other under matrimonial law, but may have rights under trust law.
What factors cause succession laws to apply on the death of an individual?
14.1 The application of English succession laws depends on the deceased's last domicile (§1.9) and on the location of any immovable property (i.e. real property).
14.2 Succession to movable property (e.g. cash, shares, chattels) is, as a matter of English law, governed by the laws of the deceased's last domicile (§1.9).
14.3 Succession to immovable property is, as a matter of English law, governed by the laws of the jurisdiction in which that property is located. Therefore, according to English law, succession to land owned in France is governed by the succession laws of France.
14.4 The above position may be altered in accordance with the private international laws of any non-English jurisdiction to which English law refers the succession, including the provisions of the European Succession Regulation (§15.2) where they apply.
How does the jurisdiction deal with conflict between its succession laws and those of another jurisdiction with which the deceased was connected or in which the deceased owned property?
15.1 Where there is conflict between English succession laws and succession laws of another jurisdiction, English law generally applies the doctrine of total renvoi. This means that, where an English court refers the succession to the laws of a foreign country, the English court will generally apply the domestic and private international laws of that country (i.e. including its conflict of laws rules) and so will seek to decide the matter as the foreign court would decide it.
15.2 Although the UK has not adopted the European Succession Regulation (Regulation (EU) No. 650/2012), that Regulation may be relevant where the deceased was connected with both the UK and a state which has adopted the Regulation. Suppose a British national who is most closely connected with England dies owning land in France. English law will refer succession to the French land to French law (§14.3), and will take French law to include those provisions of the Regulation that permit an individual to choose (as the law governing succession to his whole estate) the law of a state of which he is a national at the time of making the choice or at death. Therefore, if the individual has made a Will choosing English law to govern succession to his whole estate, an English court should accept that English law governs the succession to his French land. This should continue to be the position after the UK has ceased to be a member state of the European Union.
In what circumstances should an individual make a Will, what are the consequences of dying without having made a Will, and what are the formal requirements for making a Will?
16.1 It is advisable for an adult individual with assets in England or Wales, or to whom English succession law applies, to make a Will to ensure that his estate passes in accordance with his wishes, and in some cases to avoid unnecessarily large liabilities to inheritance tax (§5). If an individual's only connection with England is that he owns real property there, a Will is advisable as succession to that property passes in accordance with English law. Individuals should be aware that it is possible for a validly made Will to be revoked by the making of a later Will, including where the later Will is made in a non-English jurisdiction, and that marriage revokes a Will unless it was made expressly in contemplation of marriage to a particular person.
16.2 If an individual dies without a valid Will disposing of his whole estate, then to the extent that English succession rules apply, the English intestacy rules (§16.3; §17.1) generally govern succession to his estate (or to the part of his estate not disposed of by a valid Will). However, where property is owned by two or more individuals as beneficial joint tenants, that asset will pass on the death of one of those individuals to the surviving owner or owners regardless of the existence or terms of any Will. It is common for spouses or civil partners to own their English home as beneficial joint tenants.
16.3 The application of the intestacy rules depends on which family members survive. Suppose, for example, that an individual dies without any valid Will, that succession to his estate is entirely governed by English law, that his net estate capable of passing by Will (i.e. excluding jointly owned property) is worth more than £250,000, and that he is survived by a spouse and children. In that scenario, the surviving spouse takes the chattels, a legacy of £250,000 free of tax and costs, interest on that legacy from the date of death until payment, and half the balance of the estate absolutely; and the children take the other half of that balance in equal shares contingent upon reaching the age of 18 or marrying under that age.
16.4 To be validly executed for the purposes of English law, a Will must normally be in writing and signed by the testator (or by some other person in his presence and at his direction), the testator must intend by his signature to give effect to the Will, the testator's signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and each witness must either sign (or acknowledge his signature) in the testator's presence.
16.5 However, a Will which does not satisfy the above requirements is nonetheless treated as validly executed for the purposes of English law if its execution conformed to the law in force in (i) the territory where it was executed or (ii) the territory where, at the time of its execution or of the testator's death, the testator was domiciled (§1.9) or had his habitual residence or (iii) a state of which, at either of those times, he was a national.
16.6 There are a number of further circumstances under which a Will not satisfying the above requirements is nonetheless treated as validly executed for the purposes of English law.
How is the estate of a deceased individual administered and who is responsible for collecting in assets, paying debts, and distributing to beneficiaries?
17.1 The responsibility of administering the estate of a deceased individual falls on the personal representatives of the deceased. Where the deceased died having made a valid Will appointing executors, the personal representatives are those executors, who have the right to apply for a grant of probate, which will give them the right to deal with the deceased's assets. Where the deceased did not validly appoint executors who are able and willing to act, the personal representatives are the administrators, who are appointed under the intestacy rules (§16.2). Broadly, individuals who have an entitlement under the intestacy rules to assets of the deceased's estate have the right to apply for letters of administration, by which they will become administrators and gain the right to deal with the assets of the estate.
17.2 Where the deceased has left a valid Will governing the devolution of his estate, the personal representatives (§17.1) must distribute the assets of the estate in accordance with the terms of the Will. To the extent that the intestacy rules (§16.2) apply, the personal representatives must distribute the assets of the estate in accordance with those rules.
17.3 The administration of an estate proceeds broadly as follows. The personal representatives (§17.1) collect in the assets of the estate, pay all the debts and liabilities (including taxes), and then distribute the assets in accordance with the Will or intestacy rules (§16.2) (as applicable).
17.4 Personal liability of personal representatives (§17.1) is generally limited to the net value of the assets of the estate.
Do the laws allow individuals to create trusts, private foundations, family companies, family partnerships or similar structures to hold, administer and regulate succession to private family wealth and, if so, which structures are most commonly or advantageously used?
18.1 Individuals can create trusts (§19.1), partnerships and companies to hold family wealth. The use of trusts is the most common method to regulate succession to private family wealth. English law does not currently allow the creation of private foundations.
18.2 By transferring assets into trust (§19.1) during his lifetime, an individual may enjoy greater certainty as to the ultimate devolution of those assets than if he owned those assets himself and allowed them to pass under a Will on his death. Further, a trust arrangement can provide a higher degree of flexibility, confidentiality and asset protection than personal ownership. Although trustees are now subject to a number of disclosure regimes, disclosure is generally to public authorities and not to the public itself.
18.3 However, the creation of a trust by an individual who is domiciled (§1.9) or deemed domiciled for inheritance tax purposes (§5.9) in the UK is costly in terms of UK tax, and so such an individual may wish to consider an alternative asset-holding structure such as a family partnership or family investment company.
How is any such structure constituted, what are the main rules that govern it, is there any requirement for registration with or disclosure to any authority or regulator, and what information about the structure is available to the public?
19.1 A trust is established when specified property is transferred by one person (called the settlor) to other persons (called the trustees), or else comes to be held by the settlor himself as trustee, for the benefit of specified persons or a defined class of persons (called the beneficiaries), so that the trustees are legally obliged to hold and administer those assets for the benefit of the beneficiaries.
19.2 A trust (§19.1) under which a beneficiary (§19.1) is entitled to income as it arises to the trustees is called a life interest trust, and a trust under which beneficiaries have no fixed entitlement but may benefit at the discretion of the trustees (§19.1) is generally called a discretionary trust. A trust under which the trustees hold assets as mere nominees for a beneficiary or beneficiaries, who (if adult) can call for those assets to be transferred to them at any time, is generally called a bare trust.
19.3 Normally, the terms of a trust (§19.1) are set out in a trust document, but English legislation will (so far as it applies to a trust) generally give the trustees (§19.1) a range of standard administrative and other powers if these are not set out in that document. All interests of beneficiaries (§19.1) under a trust (other than a charitable trust (§26.1)) governed by English law must vest within 125 years of the creation of the trust.
19.4 Trusts (§19.1) do not have separate legal personality and can be created without any registration process. However, trustees (§19.1) are generally required to disclose certain details to HMRC, who may in turn provide those details to other UK public authorities and non-UK tax authorities with which the UK has reciprocal arrangements.
How are such structures and their settlors, founders, trustees, directors and beneficiaries treated for tax purposes?
20.1 The tax treatment of settlors (§19.1), trustees (§19.1) and beneficiaries (§19.1) of a trust (§19.1) (other than a bare trust (§19.2)) depends in the first place on whether they are UK-resident (§1.5-1.7; §20.5) and, in the case of settlors and beneficiaries, whether they are domiciled (§1.9), deemed domiciled (§1.10) or deemed domiciled for inheritance tax purposes (§5.9) in the UK. Property held on a bare trust is treated for tax purposes as belonging to the beneficiaries, and the rules described below do not apply to bare trusts.
20.2 In general, the non-UK assets of a trust, provided the trust was funded by a settlor (§20.1) who (at the time of the funding) was neither domiciled (§1.9) nor deemed domiciled for inheritance tax purposes (§5.9) in the UK, fall outside the scope of inheritance tax (§5), and this continues to be the case even if the settlor later becomes domiciled or deemed domiciled for inheritance tax purposes in the UK (unless he is a formerly domiciled resident (§5.9)). For this purpose, non-UK assets representing the value of UK residential property are generally treated as UK assets.
20.3 On the other hand, a trust which holds UK assets (or non-UK assets representing the value of UK residential property), or which was funded by a settlor (§20.1) who (at the time of the funding) was domiciled (§1.9) or deemed domiciled for inheritance tax purposes (§5.9) in the UK or who is a formerly domiciled resident, is generally subject to inheritance tax (§5) charges every 10 years and when assets are distributed to beneficiaries (§19.1) otherwise than as income. However, if such a trust is a life interest trust (§19.2) created before 22 March 2006, or a life interest trust created under a Will or for a disabled person, the property of the trust might not be subject to these charges every 10 years and on distributions, and might instead be treated for the purposes of inheritance tax as included in the estate (§5.3) of the beneficiary entitled to the life interest.
20.4 If the settlor (§19.1) is UK-resident (§1.5-1.7) and he or his spouse or civil partner can benefit from the trust, or a minor child of the settlor actually benefits from income (including accumulated income) of the trust, or the trustees (§19.1) make a loan or repay a loan to the settlor or his spouse or civil partner, then income arising to the trustees is generally charged to income tax (§2.1) on the settlor, unless the income has a non-UK source and is protected by the settlor's claim for the remittance basis (§10) in each relevant tax year (§2.13).
20.5 Where the trustees (§19.1) are UK-resident (which will be the case if, for example, they are individuals who are all UK-resident (§1.5-1.7) or where the only trustee is a company which is resident in the UK for tax purposes), they are generally subject to income tax (§2.1) and capital gains tax (§2.6) in a broadly similar way to individuals but sometimes at higher effective rates, with the trustees' precise income tax treatment depending in part on whether the trust is a life interest trust (§19.2). There are rules to prevent double taxation where the settlor (§19.1) also suffers income tax on the trustees' income under the rule described in §20.4.
20.6 Where the trustees (§19.1) are not UK-resident (which will be the case if, for example, they are individuals none of whom is UK-resident (§1.5-1.7) or where the only trustee is a company which is not resident in the UK for tax purposes and does not have a UK permanent establishment) and do not realise UK-source income or dispose of certain kinds of UK assets (such as UK residential property), charges to income tax (§2.1) and capital gains tax (§2.6) do not fall on the trustees themselves, but may in certain circumstances fall on the settlor (§19.1) or beneficiaries (§19.1) instead. For example, if a settlor is UK-resident and domiciled (§1.9) or deemed domiciled (§1.10) in the UK, chargeable gains (§2.7) arising (or deemed to arise (§20.7; §20.8)) to the non-UK resident trustees are generally charged on the settlor, failing which they can be charged on UK-resident beneficiaries who receive (or have received) benefits not charged to income tax (unless those beneficiaries are protected by the remittance basis (§10) and the benefits are not remitted to the UK (§10.3)). Similarly, income which has arisen to non-UK resident trustees and is not charged to income tax on the settlor under the rules described in §20.4 (and income which has arisen to a non-UK company owned or ultimately owned by such trustees) may be charged on a UK-resident settlor who (or whose spouse or civil partner) can benefit directly or indirectly from that income, or else may be charged on a UK-resident beneficiary who does so benefit, in each case subject to the potential protection of the remittance basis. There exists some protection from the charges described in this paragraph for a settlor who is deemed domiciled, but is not domiciled, in the UK and is not a formerly domiciled resident (§5.9), but the protection is lost if, for example, the settlor adds further property to the trust. Protection from some of the income tax charges described in this paragraph may also be available if the arrangements were genuinely commercial and did not have a tax-avoidance purpose. The above rules are expected to be amended with effect from 6 April 2018 (§27.2).
20.7 Trustees (§19.1) are generally deemed for the purposes of capital gains tax (§2.6) to make a disposal (§2.8) at market value of any asset which is distributed to a beneficiary (§19.1) (or to which a beneficiary becomes absolutely entitled), in which case the beneficiary takes the asset with a base cost equal to that value. However, where the distribution of the asset attracts a charge to inheritance tax under the rules described in §20.3, it may be possible to elect for the beneficiary to take the asset at the trustees' base cost, so that capital gains tax is deferred.
20.8 In some circumstances a capital gain arising to a non-UK resident company is attributed to trustees (§19.1) or UK-resident (§1.5-1.7) individuals who are shareholders or creditors of the company, subject to reliefs for commercial arrangements.
20.9 A partnership is generally treated as transparent for UK tax purposes so that, broadly, the partners are taxed on the profits of the partnership in proportion to their rights to share in those profits.
20.10 Directors of a company, and individuals (known as "shadow directors") with significant influence over such directors, generally suffer income tax (§2.1) as if they were employees on the remuneration and other benefits that they receive from the company.
Are foreign trusts, private foundations, etc recognised?
English law recognises trusts (§19.1) and private foundations established under non-English law.
How are such foreign structures and their settlors, founders, trustees, directors and beneficiaries treated for tax purposes?
22.1 Generally, the governing law of a trust (§19.1) makes no difference to the treatment of its settlor (§19.1), trustees (§19.1) and beneficiaries (§19.1) for UK tax purposes, and the rules set out in §20 will apply.
22.2 Structures which are not trusts (§19.1) must generally be characterised as either trusts or companies for the purposes of UK taxation, and are taxed accordingly.
To what extent can trusts, private foundations, etc be used to shelter assets from the creditors of a settlor or beneficiary of the structure?
23.1 If a beneficiary (§19.1) has a fixed entitlement under a trust (§19.1), an English court generally has power to make an order for the payment of the income from the trust to be directed to a creditor of the beneficiary.
23.2 However, where a potential beneficiary (§19.1) of a discretionary trust (§19.2) has no legal right to the trust assets, an English court will not, generally, order payment of trust funds to a creditor of that beneficiary. However, the English court has power to set aside a transaction by which assets were transferred into trust with the intention of defeating the claims of potential creditors.
23.3 However, the assets of any trust (§19.1) may be regarded by an English court as a financial resource of a beneficiary (§19.1) or potential beneficiary in reckoning his liability to make payments in divorce or child maintenance proceedings, and to satisfy claims in such proceedings the English court has wide powers to make orders against the trustees (§19.1) of, in relation to the assets of, such a trust.
What provision can be made to hold and manage assets for minor children and grandchildren?
24.1 The age of majority in the UK is 18 years. However, it is common for trusts and Wills to be drafted so that a child or grandchild's interest depends upon him reaching a greater age, for example, 21 or 25 years.
24.2 Property given to a child or grandchild who is under the age of 18 is generally held on trust (§19.1) for that individual, and the trustees (§19.1) may have wide powers under the terms of the gift or under the general law to invest and manage the property and to use it for his benefit before he reaches that age.
24.3 UK tax rules make it generally quite efficient for grandparents to set up bare trusts (§19.2) for their grandchildren, but not for parents to set up such trusts for their children. Where a grandparent makes a gift into bare trust for the exclusive benefit of a grandchild, that gift will not suffer any inheritance tax (§5) on the grandparent's death if the grandparent survives seven years from the date of the gift, and the income and capital gains arising to the trustees (§19.1) are treated as the grandchild's for tax purposes and so may fall within the grandchild's personal allowance (§2.3) and annual exempt amount (§2.10).
Are individuals advised to create documents or take other steps in view of their possible mental incapacity and, if so, what are the main features of the advisable arrangements?
25.1 Under English law, an individual (called the donor) may, by creating a Lasting Power of Attorney ("LPA"), give authority to one or more individuals (called attorneys) to deal with the donor's property or make decisions relevant to the donor's health and welfare if the donor loses mental capacity. One kind of LPA relates to decisions about the donor's property, and another kind of LPA to decisions about the donor's health and welfare (such as whether the donor should go into a nursing home or receive life-sustaining medical treatment).
25.2 If more than one attorney (§25.1) is appointed under a LPA (§25.1), the attorneys can be appointed to act either jointly (in which case they must decide everything together) or jointly and severally (in which case one of them alone may make a decision). The donor (§25.1) may also specify binding or non-binding preferences in a LPA. Attorneys come under the supervision of the Court of Protection.
25.3 If no LPA (§25.1) has been created by an individual who becomes mentally incapable of managing his property, an application must be made to the Court of Protection for a the appointment of a "deputy", who has a similar role to that of an attorney (§25.1) appointed under a LPA. The creation of a LPA is simpler, quicker and cheaper than such an application, and allows the donor (§25.1) to decide certain matters in advance and to choose who will be making decisions on his behalf.
25.4 An English LPA (§25.1) is, in practice, of limited relevance to a donor (§25.1) who is not living in England and whose assets are situated outside England.
What forms of charitable trust, charitable company, or philanthropic foundation are commonly established by individuals, and how is this done?
26.1 The simplest form of English charity is the charitable trust (§19.1). The named trustees (§19.1) hold and control the assets of the charity in their personal names but must use them for exclusively charitable purposes in accordance with the terms of the trust. This arrangement is suitable for the simplest charities, particularly those which are grant-making, do not pursue charitable activities themselves, and will not have employees or own land.
26.2 Another common form of English charity is a charitable incorporated organisation ("CIO"), which is like a charitable company (§26.3) but is regulated only by the Charity Commission for England and Wales (§26.5). The compliance obligations falling on a CIO are somewhat lighter than those falling on a charitable company. A CIO only comes into existence once it has been registered with the Charity Commission for England and Wales, which can take several months.
26.3 Another common form of English charity is a charitable company limited by guarantee. This form is generally less attractive than a CIO (§26.2) because it is regulated by both the Charity Commission for England and Wales (§26.5) and Companies House and filings must be made to both bodies. However, unlike a CIO, a charitable company limited by guarantee can be established very quickly and is a familiar form of legal entity recognised around the world.
26.4 Whatever form is chosen, a trust or body is not a charity for the purposes of English law unless it is established (and its constitutional document requires its property to be used) only for one or more of the statutory purposes and only for the public benefit. The statutory purposes include the relief of poverty, and the advancement of education, religion, health, and the arts, and may be carried on anywhere in the world.
26.5 The Charity Commission for England and Wales is the body responsible for the regulation of charities in England and Wales. Most English charities with an annual income over £5,000 must be registered with and send annual filings to the Commission, which maintains a public register including for each registered charity the names of its trustees, its charitable purposes, and copies of its filed accounts.
What important legislative changes do you anticipate so far as they affect your advice to private clients?
27.1 Amendments to the tax rates, bands, allowances and rules referred to above typically take effect from the beginning of each new tax year (§2.13), and so changes should be expected with effect from 6 April 2018.
27.2 The UK proposes to extend the scope of capital gains tax (§2.6; §8.3) to disposals (§2.8), on or after 6 April 2019, by non-UK resident (§1.5-1.7) individuals of non-residential real property situated in the UK, subject to the rebasing of such property as at that date. Capital gains tax may also be extended to disposals by non-UK resident individuals of interests in companies which own UK real property.
27.3 With effect from 6 April 2018 the UK is expected to introduce anti-avoidance rules which will apply, for example, where non-UK resident trustees (§19.1) make distributions to non-UK resident (§1.5-1.7) individuals who, later, make onward gifts (directly or indirectly) to UK-resident individuals. One of the effects of these rules would generally be to impose income tax and capital gains tax (under the rules described in §20.6) on the onward gifts as if they were distributions made directly by the trustees to the UK-resident donees.
27.4 Scotland may, for future tax years (§2.13), exercise its power for certain income tax (§2.1) purposes to apply to Scottish taxpayers different rates and bands from those applying to UK-resident (§1.5-1.7) individuals who are not Scottish taxpayers. Scottish taxpayers include those UK-resident individuals whose main or only home is in Scotland, and those UK-resident individuals who do not have their main or only home in any part of the UK but spend more midnights in Scotland than in any other part of the UK (i.e. England, Wales or Northern Ireland).