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CA25 - Inland Revenue Affidavit Guide - Questionnaire

The purpose of Part 6 is to find out if any claims to inheritance/gift tax arise outside the will or intestacy. It captures information in relation to property which may be passing to beneficiaries other than those named in the will or under an intestacy. This property may be derived either from the deceased or from a different disponer altogether, the deceased’s death being the trigger for the passing on of the benefit which may give rise to a charge to tax.

Question 1

Was there any Irish and/or foreign property (e.g. lands, house, business, monies in bank, securities etc.) held jointly (as a joint tenant or as a tenant in common) in the joint names by the deceased and another (or others) at the date of death?

Place X in the appropriate box to indicate if you are a Joint Tenant or Tenant in Common.

Place X in the appropriate box to indicate "yes" or "no". If yes, provide in relation to each item the following information:

a) full particulars of the property, e.g. in the case of:

• Lands - the address of the property, area in hectares (1 hectare = 2.47 acres), whether agricultural, development or a mix of both, site etc.;
• House - description, e.g. dwelling-house, farm house and address of the property;
• Business - address of the business, nature of the business (e.g. newsagent’s shop, partnership, or shares in ABC Ltd. etc.);
• Monies in bank - account number, name and branch of bank;
• Securities - description, including unit of quotation, size of holding and quoted price per share.

b) its total value, e.g. in the case of:

• lands, house etc. - the market value at the date of death;
• monies in bank, securities etc. - the amount in the account(s) at the date of death.

c) name(s) of the other joint holder(s) - Enter the name(s) of the surviving joint holder(s).

d) relationship to the deceased - Enter the relationship of the joint holder(s) to the disponer.

e) date the property was put into joint names, e.g. DD/MM/YYYY

f) *by whom and in what shares the property was provided e.g.

• entirely by the deceased, or
• percentage share provided by the deceased and by the joint holder etc., or
• under the will of the deceased’s father, brother etc;

g) *purpose of putting the property into joint names, e.g.

• for convenience due to incapacity of the deceased, or
• to enable the joint holder to benefit on the death of the deceased, or
• for the benefit of the deceased and joint holder etc.

h) *how and in what shares the income from the property was dealt with or enjoyed, e.g.

• solely by the deceased, or
• equally by the joint holders etc.

i) *title under which the property passes, e.g. will/intestacy/survivorship.

*Where the money or other property in joint names was provided by the deceased this may, depending on the actual or legally presumed intention, have given rise to a resulting trust in the deceased’s favour. (See explanation of resulting trust below).

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Joint property

Joint property is property held in the joint names of two or more people. The property can be real property (e.g. land and buildings) or personal property (e.g. bank accounts). The liability to tax in respect of property in joint names depends on the beneficial interest of each of the parties in the relevant property. Property in joint names will usually be held under a joint tenancy or a tenancy in common.

Benefits taken under this heading must be summarised in Part 8 of the Inland Revenue Affidavit.

Joint tenancy

Joint tenancy means that two or more people have an interest in the property, but do not own their share outright since the title to the property includes the title of the other joint owner(s). A joint tenant cannot sell, gift or lease his/her share of the property without severing the joint tenancy. On the death of one of the joint tenants, the deceased person’s share will automatically pass by survivorship to the surviving joint tenant. The deceased person’s share is not an asset of the estate and should not be included in Part 4 or 5 of the Inland Revenue Affidavit. The benefit taken by the survivor can however have tax implications depending on the amount, group threshold etc. (See Inheritance Tax).

The survivorship principle normally applies to real property but it can also apply to personal property, e.g. joint bank accounts. However, in certain circumstances, the survivorship principle may not apply and a resulting trust may arise.

Resulting Trust (see footnote to Question 1)

Where the presumption of a resulting trust arises, property, although held jointly, will not pass automatically to the survivor but will revert instead to the estate of the deceased to be distributed according to the will/intestacy.

In cases where money is placed in the joint names of the disponer and somebody else, there is a presumption in law that a resulting trust exists in favour of the person who provided the funds. This means that it is legally presumed that the portion of the money provided by the deceased in the account forms part of the deceased’s estate and does not automatically go to the other account holder(s). Where the surviving account holder claims title by way of survivorship, the onus of proving that the joint property should pass by survivorship rests with the survivor. The presumption of resulting trust, being only a presumption, can be rebutted by evidence of a contrary intention on the part of the person who provided the funds or by a presumption of advancement.

Tenancy in common

Tenancy in common means that the portion of the joint property (normally land or buildings) held by each person is owned separately by that person. The joint owner can sell, gift, lease or otherwise dispose of his/her share of the property as he/she wishes. When a tenant in common dies, his/her share of the property passes according to his/her will or intestacy and does not pass automatically to the surviving tenant(s) in common. It is therefore an asset of the estate and should be included in Part 4 or 5 of the Inland Revenue Affidavit, as appropriate.

Benefits taken under this heading must be summarised in Part 8.

Note: Banks, building societies and other financial institutions are prohibited by law from releasing monies (other than current accounts) lodged or deposited in the joint names of the deceased and another person or persons in the absence of a letter of clearance, Form I.T.8, from the Revenue Commissioners. This applies if, at the date of death, the total of all the amounts standing with the institution in the joint names of the deceased and that other person or persons exceeds €50,000 (Section 109 of the Capital Acquisitions Tax Consolidation Act, 2003). The requirement does not apply, however, to monies which have been held in the joint names of the deceased and his/her surviving spouse or surviving civil partner. The letter of clearance should be requested from the Revenue Commissioners.

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Question 2

Did any person benefit on the death of the deceased under a nomination at any time made by the deceased? Place X as appropriate to indicate "yes" or "no".

Nominated property is any property which the deceased placed in the name of a person for their benefit on his/ her death. Nominated property passes directly to the nominee in accordance with the rules/regulations under which it was invested and it does not pass to the deceased’s personal representative to be distributed according to the will/intestacy.

If the reply to this question is "yes", provide the following full particulars:

1. description of the holding
2. the name of the beneficiary
3. the value of the nomination

Nominated property can give rise to inheritance tax and benefits taken under this heading are required to be summarised in Part 8.

Question 3

Did any monies, (capital sum, annuity, etc) other than those (if any) included in Part 4 or 5, become payable on or by reference to the death of the deceased under the provisions of any superannuation scheme (whether ex-gratia or not), policy of insurance etc.?

This question identifies the existence of benefits such as annuities, death benefits, policies of insurance etc., passing to specifically named beneficiaries on the death of the deceased, for example:

• Proceeds of a keyman or co-director’s policy payable to a business partner;
• Death-in-service gratuity or superannuation scheme payable by the deceased’s employer to named persons;
• Annuities/pensions payable to named individuals.

Place X in the appropriate box to indicate "yes" or "no".

Enter the description of the holding.

Enter the name of the beneficiary.

Enter the amount/value taken by each beneficiary.

Enter, in the case of annuities, the amount and term of annuities, e.g. €5,000 each year for 10 years.

Indicate, in the case of insurance policies, who paid the premiums, if not the deceased alone.

Benefits passing under this heading should not be included in Part 4 or 5 of the Inland Revenue Affidavit. However there may be tax implications depending on the amount, group threshold etc. (See Introduction, Inheritance Tax).

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Question 4

a. Was the deceased in receipt of any Social Welfare payments?

• Place X in the appropriate box to indicate "yes" or "no".
• If yes, state the claim no. This will be available from any documentation e.g. pension book, received from the Department of Social Protection.

b. Has the Department of Social Protection any claim against the estate of the deceased?

• Place X in the appropriate box to indicate "yes", "no" or "not yet ascertained".

Under the Social Welfare Consolidation Act, 2005, the personal representative is obliged to inform the Minister for Social Protection of details of the assets of deceased persons who were in receipt of Social Welfare payments at any time during their life.

This information must be given not less than three months prior to distributing the assets in the estate.

It is designed to discover if the deceased, because of the level of assets owned, may not have been entitled to means tested Social Welfare payments. In such cases, the personal representative is obliged to refund any overpayments to the State.

Question 5

Was the deceased survived by a spouse or civil partner?

If so, state the position as to election under Section 115 of the Succession Act, 1965.

A surviving spouse or surviving civil partner may elect to take a legal right share under Section 115 of the Succession Act, 1965. This can occur if the deceased did not make adequate provision for the surviving spouse or surviving civil partner in his/her will.

By law, the surviving spouse or surviving civil partner is entitled to a share in the deceased spouse's or civil partner estate and the entitlement is one-third where there are children and half where there are none. There is a time limit in which the surviving spouse or surviving civil partner may elect and the executor is obliged to notify him/her in writing of his/her right of election within the specified period. The surviving spouse or surviving civil partner must exercise his/her right within six months of receipt of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the later.

Where a surviving spouse or surviving civil partner elects to take the legal right share, there may be implications for the beneficiaries of the will, since the legal right share of the surviving spouse or surviving civil partner takes priority.

Note: that election is not material in an intestacy, since the surviving spouse or surviving civil partner is automatically entitled to two-thirds of the estate where there are children and to the entire estate where there are none.

In the event of uncertainty regarding this section of the legislation you must take legal advice.

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Question 6

a) Was the deceased in receipt of payments under the Nursing Home Support Scheme?

Place X in the appropriate box to indicate "yes" or "no".

b) If yes, please indicate if the HSE has any claim against the estate of the deceased.

Place X in the appropriate box to indicate "yes" , "no" or "not yet ascertained".

The purpose of the question is to prompt the personal representative that there may be a liability under this scheme and to ensure that the liability is reflected in the application for a Grant of Representation. Any liability must be paid to the Revenue Commissioners.

Question 7

Was the deceased at the date of death the owner of a limited interest (e.g. an annuity, right of residence, or and interest for life or otherwise in house, lands, securities etc.)?

Place X in the appropriate box to indicate "yes" or "no".

A limited interest arises where a person is given the beneficial ownership of property either for life or for some other specified period under a settlement or a will made by another person or by a settlement made by the deceased in his/her lifetime.

If the deceased had such an interest in property, it is now, on his/her death, passing or reverting to someone else (remainderman) in accordance with the terms of the original instrument creating that interest.

The person who now takes the benefit on the death of the deceased inherits from the person who created the original settlement (settlor).

If the reply to this question is "yes", provide full particulars in the panel titled "Full Particulars" including:

1. the name, address and PPS number of the person who created the limited interest and, if dead, the date of death;
2. the names and addresses of the trustees for the settlor and of the solicitors acting for them;
3. the names, addresses and PPS numbers of the beneficiaries now coming into possession of the relevant property;
4. the relationship between the beneficiaries and the person who created the life interest (settlor);
5. particulars and estimated values of the property involved at the date of the deceased’s death.

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Question 8

Did any person, on or after 5 December 1991 under a disposition (e.g. a transfer or settlement) at any time made by the deceased, take:

a) a gift?

Place X in appropriate box to indicate "yes" or "no".

The purpose of this question is to identify any prior gifts given by the deceased during his/her lifetime

The relevance of the date "5th December 1991" is that gifts and inheritances taken on or after that date by the same beneficiary from any source within the same "group threshold" aggregate with (are added to) the current benefit.

If the reply to this part of the question is "yes", provide full particulars in the panel titled "Full Particulars" including:

1. the date of the gift;
2. the names, addresses and PPS numbers of the beneficiaries;
3. the relationship between the deceased and the beneficiaries;
4. particulars and estimated values of the property involved.

b. any other* benefit in possession (other than a property disclosed in Parts 4 or 5 or in reply to questions 1, 2 or 3 in this Part)?

If the reply to this part of the question is "yes", provide full particulars in the panel titled "Full Particulars" including:

1. the date of the settlement creating the life interest;
2. the names and addresses of the trustees (if any);
3. the date of death of the life tenant;
4. the name, address and PPS number of the beneficiary (remainderman);
5. the relationship between the settlor and the beneficiary;
6. particulars and estimated values of the property involved at the date of death of the life tenant.

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Question 9

Did the deceased at any time make a disposition:

a) subject to a power of revocation?

Place X in appropriate box to indicate "yes" or "no".

This means that a gift given prior to death could be revoked (taken back) by the disponer during his/her lifetime. An example of this is where the disponer transfers property to someone else but retains the power to take it back at any time during his/her lifetime.

No tax is charged at the date of the disposition on the basis that ownership is deemed to remain with the disponer.

If the disponer (settlor) dies without having revoked the benefit, the beneficiary takes an inheritance on the date of death and is taxed accordingly. However, in addition to the inheritance, the beneficiary is also deemed to take a benefit of "free use" of the property during the period between the date of the original disposition and the date of death of the disponer.

If the reply to this question is "yes", provide full particulars in the panel titled "Full Particulars" including:

1. the date of the deed whereby the property was transferred;
2. particulars of the property and its value at the date of transfer;
3. the names and addresses of the trustees, if any;
4. the name, address and PPS number of the beneficiary;
5. the relationship between the settlor (deceased) and the beneficiary;
6. the date the transfer was revoked, if applicable;
7. particulars and estimated values of the property at the date of revocation;
8. if a power of revocation was not exercised, particulars and estimated values of the property at the date of death of the settlor;
9. annual letting value of the property for each year of "free use".

Question 9(a) Example of particulars required where the reply to this question is "yes"

By deed dated 01/01/2007, Sean Kelly, the deceased, transferred property subject to a power of revocation. The deceased died without having exercised his power of revocation.

Particulars of property: Dwelling-house at Dunlo Street, Ballinasloe, Co. Galway, value €350,000

Trustees: John Leonard, Leonard & Co. Solicitors, Main Street, Ballinasloe, Co. Galway

Beneficiary: Bill Kelly, Dunlo Street, Ballinasloe, Co. Galway. PPS No. 0000006K

Relationship to settlor: nephew

Value of property at date of death: €400,000

Annual letting value: €12,000

b. by way of surrender (for full consideration or otherwise) of a limited interest?

Place X in appropriate box to indicate "yes" or "no".

This part of the question is to identify if the deceased had conceded or disposed of any interest due to him/her to the benefit of a third party, i.e. if he/she had not taken the benefit of a life interest available to him/her.

Note: If Niall had paid a consideration to Tom on the release of the life interest, this can be offset against any gift tax paid by Niall on the benefit from Tom.

If the reply to this part of the question is "yes", provide the following particulars in the panel titled "Full Particulars":

1. the name, address and PPS number of the person who created the limited/life interest;
2. the name, address and PPS number of the beneficiary (remainderman);
3. the relationship between the person who created the limited/life interest and the remainderman;
4. the names and addresses of the trustees (if any);
5. the relationship between the deceased (life tenant) and the remainderman;
6. particulars and estimated values of the property involved at the date of surrender of the limited/life interest;
7. the amount of any consideration paid for the benefit.

Full Particulars

Question 9(b). Example of particulars required where the reply to this question is "yes"

c. allowing (on or after 5 December, 1991) the use of any property free of charge or for other than full consideration?

Place X in appropriate box to indicate "yes" or "no".

A charge to tax arises where a person has the use and enjoyment of property for less than full consideration. If the "free use" is ongoing, a benefit is deemed to be taken on 31 December each year.

If the reply to this question is "yes", provide the following particulars in the panel titled "Full Particulars":

1. the date on which the "free use" started;
2. the name, address and PPS number of the beneficiary;
3. the relationship between the disponer and the beneficiary;
4. particulars and estimated values of the property involved at the date the "free use" started;
5. the annual market rent, i.e. letting value of the property;
6. the amount of any consideration paid.

Full Particulars

Question 9(c). Example of particulars required where the reply to this question is "yes"

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Question 10

Did the deceased create a discretionary trust:

1. during his or her lifetime, or
2. under his or her will?

Place X in appropriate box to indicate "yes" or "no".

A Discretionary Trust can be defined as a trust containing property of any kind, which is held by trustees who have discretionary powers over the appointment of and/or accumulation of income and/or capital. The definition, as contained in Section 2 Capital Acquisitions Tax Consolidation Act 2003 is as follows:

"discretionary trust" means any trust whereby, or by virtue or in consequence of which –

1. property is held on trust to accumulate the income or part of the income of the property, or
2. property (other than property to which for the time being a person is beneficially entitled for an interest in possession) is held on trust to apply, or with a power to apply, the income or capital or part of the income or capital of the property for the benefit of any person or persons or of any one or more of a number or of a class of persons whether at the discretion of trustees or any other person and notwithstanding that there may be a power to accumulate all or any part of the income.

The settlor, either during his/her lifetime, or in his/her will, transfers property to trustees who may have discretion as to when, and/or to who and/or to what amount, the property comprised in the trust should be given. When a trust is a Discretionary Trust i.e. when there is no immediate and automatic benefit under the trust, the assets in the trust are subject to Discretionary Trust Tax charges during the lifetime of the trust.

Whether the Discretionary Trust was created during the lifetime of the settlor or in his/her will, Discretionary Trust Tax becomes chargeable when the settlor dies and when the youngest "Principal Object" attains 21 years of age.See definition of "Principal Object" at (c) below.

Discretionary Trust Tax is chargeable as follows:

1. an immediate once-off 6% charge on the value of the assets in the trust on the valuation date, assuming there are no Principal Objects under the age of 21 years. In the case of a Discretionary Trust created during the lifetime of the settlor, the tax becomes due at the date of death of the settlor. In the case of a Discretionary Trust created under the terms of the will of the settlor, the tax becomes due when the administration in his/her estate has been completed and the extent of the residue has been ascertained.
2. an annual 1% charge arising on 31 December of each year on the value of the assets of the trust at that date (to be paid within 4 months of this date), assuming there are no Principal Objects under the age of 21 years.

Note: For years prior to 2006, the chargeable date for the annual 1% charge was 5 April of each year. Under the provisions of the Finance Act 2006, there were 2 chargeable dates in 2006 i.e. 5 April 2006 and 31 December 2006. Tax at the latter date was chargeable at 73.97% of the tax charged at 1%. For each subsequent year, the chargeable date is 31 December.

Note: This charge does not apply where 31 December occurs in the twelve months immediately following the date on which the 6% charge arose.

Self Assessment Discretionary Trust Tax returns (Form IT4 for the 6% initial charge and Form IT32 for the 1% annual charge) must be completed and sent, together with the tax due, to the Revenue Commissioners within these time limits:

Initial once-off charge - Within 4 months of the valuation date.

Annual 1% charge - Within 4 months of 31 December of each year.

Exemptions:

Exemptions to Discretionary Trust Tax applies under Section 17 Capital Acquisitions Tax Consolidation Act 2003 where the Revenue Commissioners are satisfied that the trust has been created exclusively for one (or more) of the following purposes:

1. public or charitable purposes in the State or Northern Ireland;
2. the purpose of a superannuation or unit trust scheme;
3. the purpose of providing for the upkeep of a heritage house or garden;
4. the benefit of one or more named individuals who are because of age or improvidence or physical, mental or legal incapacity incapable of managing his/her or their affairs.

(c) Are any "Principal Objects" named as objects of a discretionary trust?

Place x in appropriate box to indicate "yes" or "no".

If yes, state the date of birth of each e.g. DD/MM/YYYY

A "Principal Object"s of a discretionary trust is defined as -

• The spouse or civil partner of the settlor
• A child of the settlor
• A child of the civil partner of the settlor
• A child of a predeceased child of the settlor
• A child of a predeceased child of the civil partner of the settlor ,
• A child of the civil partner of a predeceased child of the settlor ,
• A child of the civil partner of a predeceased child of the civil partner of the settlor

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Question 11

Was the deceased entitled at the date of death to an interest in expectancy in any property?

Place x in appropriate box to indicate "yes" or "no".

An interest in expectancy is a benefit to which the deceased is entitled but which may not come into possession until some future date, (i.e. on the death of another person).

If the reply to this question is "yes", the following particulars are required to be given in the panel titled "Full Particulars".

1. the name, address, PPS number and, if dead, the date of death of the person who created the interest in expectancy;
2. the name and date of birth of the person, i.e. life tenant, on whose death the expectant interest arises;
3. the names and addresses of the present trustees and of their solicitors;
4. the relationship between the (settlor) and the deceased;
5. particulars and estimated values of the property involved.

Full Particulars

Question 11. Example of particulars required where the reply to this question is "yes".

Question 12

Did any person become entitled on the death of the deceased to an interest in any property by virtue of the deceased's exercise of or failure to exercise a general power of appointment?

Place x in appropriate box to indicate "yes" or "no".

A general power of appointment can be described as a power given by deed or will to a person who may appoint property to whomsoever he/she wishes including himself/herself.

If the reply to this question is "yes", the following information should be provided in the panel titled "Full Particulars":

1. the names, addresses and PPS number and, if dead, the date of death of the settlor;
2. the names and addresses of the trustees, if any, and of their solicitors;
3. the relationship between the (settlor) and the life tenant;
4. particulars and estimated values of the property involved at the date of the settlor's death;
5. the name, address and PPS number of the beneficiary at the date of the deceased’s death;
6. the relationship between the beneficiary and the deceased;
7. estimated values of the property at the date of the deceased’s death.

Benefits taken under the above heading must also be summarised in Part 8.

Full Particulars

Question 12. Example of particulars required where the reply to this question is "yes".

November 2012

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