INTRODUCTION

Many people assume that a Will is set in stone once the Testator passes away. However, under certain circumstances, you can change a Will after death under a legal document called a "Deed of Variation."

To change the Will after death, you must be a Beneficiary. However, changing a Will post-death cannot be a unilateral decision, and you will need the agreement of all affected Beneficiaries. This allows the Beneficiaries to adjust the distribution of the Estate among themselves.

It's important to note that this process does not require the Executor to change the Will, as the Executor's role is to carry out the deceased individual's wishes as laid out in the Will.

WHAT IS A DEED OF VARIATION?

A Deed of Variation is a document that changes how an Estate is distributed according to the Testator's wishes following the Testator's death.

The document allows the Beneficiaries of a Will to redistribute their inheritance among themselves, redirect it to other Beneficiaries, or assign it to a charity.

There are some common reasons for doing this, which we have laid out below.

WHAT ARE THE REASONS FOR CHANGING A WILL?

At first glance, modifying a Will may sound like an extreme move. However, some circumstances exist where Will modification can turn out to be beneficial.

Here are some of the more common reasons:

1. Removing Ambiguity: If the Will contains any vague or ambiguous wording, the Deed of Variation can clear this up. You can also consider making minor amendments through a codicil.

2. Fairness: A Will is drawn up at a certain point in time. However, life continues to evolve, and Beneficiaries' circumstances and needs may change. If a named Beneficiary becomes less well off (or wealthy), the Beneficiaries may collectively agree to change the distribution of the inheritance to reflect this change in the name of fairness.

3. Including Beneficiaries: A new family member (birth of a child) may not have been considered in the original Will, but the Beneficiaries collectively agree should be included. The Deed of Variation can take into account this new family member.

4. Tax Benefits: A Deed of Variation can also reduce your Inheritance Tax (IHT) and Capital Gains Tax (CGT) liabilities.

The standard Inheritance Tax (IHT) rate is 40%, applicable to the deceased person's Estate over the £325,000 limit. A Beneficiary can decrease their IHT duty by modifying the Will.

Here's how that would work under these circumstances:

• Suppose a Beneficiary wishes to pass a portion of their inheritance to someone else, such as their child. The Deed of Variation allows the Beneficiary to add the new Beneficiary to the Will, thereby re-allocating some of the inheritance to them.

• This then allows the new Beneficiary (the child) to receive the funds without being subject to IHT. This scenario is different to receiving funds as a gift from the original Beneficiary, where the 'seven-year rule would apply (if a person dies within seven years of leaving a gift, that gift might be liable to up to 40%).

• A Beneficiary could redirect a portion of the Estate to a tax-exempt Beneficiary, such as a spouse who might be tax-exempt.

• A Beneficiary can also gift a portion of the Estate to charity in order to reduce the amount of IHT owned on the Estate.

HOW TO MODIFY A WILL POSTDEATH

To modify a Will post-death, you will need the consent of all affected Beneficiaries.

Modifying a Will following the Testator's death doesn't necessarily require the services of a professional will writer and can usually be carried out at no cost.

In addition, the Beneficiary can initiate a request for a Deed of Variation by simply writing a letter. No deed or other official document is required. However, the Executor must agree to any amendments before it can become legally valid.

In addition, the Beneficiary's request must meet the following minimum requirements to comply with HMRC's rules.

The variation must:

• be executed in written form;
• contain accurate and clear information about those elements of the Will to be modified;
• specify who will benefit from these modifications;
• include the signatures of all Beneficiaries who may be negatively impacted from the modifications, as well as the signature of the Beneficiary making the modification;
• be witnessed by an individual who is neither their spouse, nor a party to the deed.

In addition, if the variation alters the amount of Inheritance Tax (IHT) owed, then the Beneficiary must submit a copy to HMRC within six months from the moment of initiation of the variation.

WHAT HAPPENS IF THERE'S NO WILL?

If someone dies without leaving a Will, their Estate will be distributed according to the rules of intestacy. Please consult our other articles regarding intestacy.

WHO AUTHORISES THE DEED OF VARIATION?

For the Deed of Variation to be considered legally binding, the document must be signed ONLY by all Beneficiaries who will be impacted by the change.

Bear in mind that if any Beneficiaries impacted by the change are under the age of 18, then you will need to apply to the court for permission to make it binding on them.

In instances where Beneficiaries are minors (under the age of 18) or lack the mental capacity to consent, additional steps are needed. Such Beneficiaries cannot legally authorise a Deed of Variation and, as such, court authorisation would be required to ensure that the modification is in their best interests."

HOW LONG DOES A DEED OF VARIATION TAKE?

Usually, it takes somewhere between two weeks and typically up to a month.

However, you should expect a longer timeframe under certain circumstances, such as when a Beneficiary is under 18 or lacks the mental capacity to consent to the variation. In these cases, a corresponding court authorisation will lengthen the process.

CAN AN EXECUTOR BE REPLACED USING A DEED OF VARIATION?

No, a Deed of Variation cannot be used to change the Executor. However, there are other ways to challenge or change the Executor, and we advise you to consult our other FAQs regarding this matter.

Alternatively, please contact us, and we'd be happy to discuss the range of options, depending on your circumstances.

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