Provisions relating to Legitim: alternative to the basic rule
As an alternative to the basic rule (IHTM35212) the executors can, if they so wish, elect under IHTA84/S147 (3) that the provisions of IHTA84/S147 (4) should apply to the estate. Where this happens, you can allow full spouse or civil partner exemption (IHTM11031) (IHTM11032) on the testator’s death.
IHTA84/S147 (3) and (5) provide that the executors (or judicial factor) of the testator may within two years from the date of death, or such longer period as the Board may permit, elect in writing that the basic rule in IHTA84/S147 (2) shall not apply but that the provisions in subsection (4) shall apply. Any case in which a longer period than two years is requested by the parties should be referred to TG.
Because IHTA84/S147 (4) operates to reduce the tax payable on the deceased’s death, you should, in appropriate cases (IHTM35214) consider whether you should remind the executors of the provisions of IHTA84/S147.
Spouse or civil partner exemption given following an election under IHTA84/S147 (3) would need to be restricted later on if the persons entitled to claim legitim (IHTM12221) did so within the time limits in IHTA84/S147 (6) namely either
- before attaining 18, or
- within two years of attaining 18, or such longer period as the Board may allow.
Tax should be charged as the top-slice of the deceased’s estate and interest charged from the original due date. IHTA84/S147 (9) allows you to collect tax even though a certificate (IHTM40010) has been issued and more than six years have elapsed since the certificate was given by disapplying IHTA84/S239 and IHTA84/S240.
You should refer any case where a period longer than two years is proposed to TG.