There is something of a credit crunch flavour to this update, as it covers bankruptcy and inheritance tax problems caused by falling values.

Many practitioners are finding that falling stockmarket and land prices are causing inheritance tax (IHT) headaches for families. IHT valuations are made at the date of death so, in the current climate, families may find they are being forced to pay tax on a value that can no longer be realised. In the case of land, some district valuers have been reported as being unwilling to agree realistic values, but as more evidence is published of the extent to which prices have fallen over the last 12 months (15%, according to a recent parliamentary question), it is becoming more difficult for them to argue with lower valuations.

A further problem is that, once the IHT value is fixed, no account is taken of falls in value unless relief is available under sections 178-198 of the Inheritance Tax Act 1984. This relief requires qualifying investments (broadly quoted investments and authorised unit trusts) to be sold within 12 months of death, and land and interests in land within four years of death at less than probate value.

Many estates include quoted shares which are now worth substantially less than they were at the date of death. The beneficiaries of the estate may feel that it is better for the personal representatives (PRs) to hang on to the shares and wait for an eventual upturn. It is important that everyone involved appreciates that IHT will have to be paid on the original figure and that no loss on sale relief will be available once the 12-month period has elapsed, however low the eventual sale price. Even if the PRs do sell within the 12-month period, the relief is not given automatically; it has to be claimed. There is relief available where shares are suspended or cancelled and HM Revenue & Customs has special guidance available on its website for estates which included shares in Northern Rock.

In relation to land the period for sale is four years - extended in the last property slump from three years - so the problem is not quite so acute. However, many practitioners are complaining that they have property which is genuinely unsaleable, such as retirement flats where many flats in the block are empty and sales can only be made to certain categories of buyer. In cases where the pool of purchasers is not restricted in this way, it may sometimes be possible to sell to a beneficiary of the estate to crystallise the relief. Section 191(3) of the act provides that the relief is not available if the sale is to a person beneficially entitled to property comprising the interest sold or to a spouse, civil partner or issue of such a person. However, it is worth looking at paragraph 33082 of the Inheritance Tax Manual to see exactly how HMRC interprets this.

On 17 November Baroness Gardner of Parkes asked the government to review the IHT liability of executors who have to wind up estates that include unsaleable properties. However, the government’s response was disappointing: Labour’s Lord Davies said the current arrangements contain enough safeguards.

Bankruptcy of residuary beneficiary Raymond Saul & Co (a firm) v PR of Bernard Hemming (deceased) and Trustee in Bankruptcy of Bernard Hemming [2008] EWHC 2731 (Ch)Bertha Hemming left almost her entire residuary estate to her son, Bernard, who was also appointed her executor. Bernard instructed solicitors to act on his behalf in the administration. Unfortunately, Bernard was declared bankrupt two months later and a trustee in bankruptcy was appointed. Before the administration of the estate was completed, Bernard was automatically discharged from bankruptcy. The solicitors applied to court under part 64 of the Civil Procedure Rules for a declaration as to whether the residue of Bertha’s estate should be paid to the trustee in bankruptcy or to Bernard. Bernard subsequently died and his executor was substituted as defendant. The solicitors argued that a residuary legatee has two separate rights: a chose action to compel due administration of the estate which arises on death and, therefore, vested in the trustee in bankruptcy and a separate right to payment of residue. This right to receive the residue comes into existence only upon completion of the administration and, as that was after the date Bernard had been discharged from bankruptcy, the residue should pass to his estate.

Richard Snowden QC rejected this argument and held that the residue must be paid to the trustee in bankruptcy. Upon the death of a testator a residuary legatee has an immediate entitlement, arising from the terms of the will, to have any assets that formed the residue transferred to him on completion of the administration. That entitlement does not give the residuary legatee any present property interest in any of the individual assets forming the estate while it is being administered or any immediate interest of a proprietary nature in the residue.

However, the residuary legatee’s immediate entitlement to future payment is recognised and protected, while the estate is in the course of administration, by a right of action to compel the due administration of the estate. There is no sensible basis upon which the residuary legatee’s entitlement to receive assets in the future can be separated from his right to compel due administration of the estate. The right of a residuary legatee is a composite right to have the estate properly administered and to have any residue paid to him as and when the administration was complete.

When a legatee became a bankrupt, the chose in action which vests in his trustee in bankruptcy is therefore the composite right that includes the right to have the assets comprised in the residuary estate paid to him at the end of the administration. Once that right has vested in the trustee, it cannot revest in the bankrupt person unless and until his bankruptcy debts and costs had been paid.

The trustee in bankruptcy can assert the right against the executors so as to preclude them from giving priority to any rival claims to the assets comprising the residue at the end of the administration.