An election by the personal representatives is required if,
and only if, the variation results in additional tax being payable,
IHTA84/S142 (2)(b). The only likely case of additional tax is where
property given by an original disposition to a surviving spouse or
civil partner (
IHTM11032) is, by a variation, directed
to chargeable beneficiaries.
An IoV and a valid election can be made prior to the grant of
representation being extracted (
IHTM35032) but where the provisions of
IHTA84/S142 (2)(b) apply and the personal representatives are party
to the election you cannot accept that the IoV falls within
IHTA84/S142 (1) until the grant has been extracted.
IHTA84/S142 (2) also provides that the personal
representatives may decline to join in an election only if any
assets that they hold as personal representatives are insufficient
to meet the extra tax. In other words, that the requirement for
them to elect does not require them to make any judgement about the
merits of the variation, but merely protects them from liability
arising from a variation after distribution. You should refer any
difficulties arising from the requirement to TG at an early
stage.
