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A will can be changed after death by use of a deed of variation

You may think that the provisions made within a will are written in stone and cannot be amended once the testator has died, and that intestacy rules (where someone doesn’t have a will) cannot be overruled.  However, that is not quite true.  It is possible to make alterations relating to a deceased’s estate – whether there is a will or not – by entering into a deed of variation.

deed of variation

Laura Cowan

A deed of variation is a legal document that allows the beneficiaries to make changes to the way and to whom an estate is divided.  Where there is no will, those entitled to inherit under the rules of intestacy, can also request these changes. A deed of variation must be entered into within two years of the death of the testator for it to be effective.

Single or multiple deeds relating to one estate can be entered into as long as an asset is only varied once.  The deed or deeds don’t have to involve all beneficiaries: only those whose inheritance is to be amended, and they can only vary their own share of an estate.

A deed can be entered into by any beneficiary who is of sound mind and is over the age of 18.  It cannot be used to divert funds away from a creditor or to stop a person on means-tested benefits from undergoing further means-testing after inheriting.  It can be made during the administration process or after it has been completed, including when assets have already been transferred to the beneficiaries.

Anyone who has a right to inherit from a will or intestacy rules can give away their inheritance to whomever they choose, should they wish to.  There are several reasons why someone might want to do this, such as:

  • To help people more vulnerable than themselves, for example, to provide for special needs assistance or care home fees.
  • Providing for unmarried partners.
  • Leaving assets to charity. Leaving 10% or more of the net estate to charity may allow the estate to qualify for a lower IHT rate of 36%.
  • Diverting funds to grandchildren, children born after the death of the testator or children who have not been adopted.
  • Dealing with a will that has been revoked by marriage and the rules of intestacy mean that those who would normally inherit no longer do so.
  • Improving tax efficiency – changes can be ‘read back’ to the point of death, providing certain rules are adhered to, which can mitigate certain tax liabilities.

Making a gift under a deed of variation allows the gift to be treated as if it was made by the deceased.

For this reason, deeds of variation are regularly used to maximise tax efficiency. For example, assets can be redirected to utilise any inheritance tax (IHT) relief that is available.   Trusts can also be used for future planning, where family circumstances may be different to the date the will was written.

Another advantage is if the named beneficiary is likely to have their own IHT liability upon their death, they may want their inheritance to be gifted to someone else immediately rather than making gifts after inheriting. If done under a deed of variation the requirement to survive the gift by seven years for it to be out of their estate for inheritance tax, no longer applies. Consideration also needs to be made with regard to capital gains tax. It is possible to elect for this to be read back to the date of death as well, which could again be advantageous from a tax point of view.

Laura Cowan, head of Graysons’ private client department says: “A deed of trust is clearly an important document and as such it could be abused or ineffective if written incorrectly.  Complex rules – particularly around signatories and witnesses – and tax implications mean that things can easily go wrong, so it is advisable to get legal advice.”

Laura has many years’ experience of drafting deeds of variation to help those who want to change a will after death.  She is a member of STEP – an organisation whose members are experts in inheritance and succession planning.  Contact Laura now for advice on how you can achieve your desired changes and what your next steps should be.

Author: Laura Cowan, head of Graysons’ private client team.

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