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Post death variations to Wills

It is possible to rearrange the way a deceased person’s property and possessions are to be distributed provided this is done within two years of the death.

Can a Will be changed after death?

Where there is an agreement for an Estate to be distributed in a manner which does not adhere to the deceased person’s Will, or the requirements of the Intestacy Rules (if the person dies without making a Will), this is called making a Deed of Family Arrangement or Variation. 

All the people who would inherit under the Will or the Intestacy Rules must agree otherwise the proposed variation cannot take effect. Sometimes beneficiaries cannot consent to such an arrangement, for example, minors or persons with a disability.

If all relevant persons are in agreement then the deceased’s property and possessions can be shared out in a different way so that people who did not stand to inherit under the Will or the Intestacy Rules can still receive part of the Estate. If this is done within 2 years of death, the variation will be treated for tax purposes as if it had been made at the date of death.

Why would I change a Will after death?

There are many reasons that someone may want to make changes to a Will after the testator has died. These include: 

  • Circumstances may change between someone writing their Will, and their beneficiaries inheriting. For example, children and grandchildren may be born but who are subsequently left out. 
  • Some beneficiaries do not want to inherit or may prefer that their inheritance goes to someone else.
  • Some beneficiaries prefer for their inheritance to go to charity.
  • There is a more tax-efficient way to distribute the estate. 

Can a spouse change it? 

The only people who have the power to change a Will after death are the individuals who stand to inherit. Thus, if the spouse is a beneficiary of the Will they can seek to put together a Deed of Variation to make a change to their portion of the Will. 

If the spouse is not already a beneficiary, there are other methods for disputing a will which doesn’t involve a deed of variation. 

Can an executor change a Will after death

If the executor is also a beneficiary of the Will, they can create a Deed of Variation just as all beneficiaries are entitled to do. 

They can amend their own share of inheritance as long as they have the consent of the parties who stand to lose out from the amends.

 It is also important to note that changes made by beneficiaries of the Will through a Deed of Variation need to be approved by the executor. 

What is a Deed of Variation?

A Deed of Variation is the legal document which allows changes to be made to a Will after the testator passes away, or in cases where there is no Will.

A Deed of Variation allows you to detail how you would like your share of the estate to be distributed. If other people’s shares of the estate will be affected, they will need to agree to the changes as well.

A Deed of Variation can technically be quite informal and still be legally binding. It is merely a letter which details the changes to the Will that a beneficiary wants to make which is then signed-off by the other beneficiaries and the executor. A valid Deed of Variation can be made within two years of the deceased’s death.

How long does this deed take? 

The time frame required to prepare the Deed can be as short as 2 – 4 weeks if all of the parties agree. However, do bear in mind that it can take time for all affected parties to potentially obtain independent legal advice and/or to circulate the agreed document for the purposes of obtaining signatures. If an application to the court is required, such as in circumstances where some of the beneficiaries are minors, or have reduced capacity, this timeline will need to be extended further.

How much does it cost? 

Technically, a Deed of Variation doesn’t need to cost anything given that it can just be a letter signed by the beneficiaries and the executor to be legally valid. However, the involvement of an experienced probate solicitor is recommended to ensure that the Deed of Variation is drafted correctly, and has the desired results. 

A solicitor can also give you comprehensive legal advice on the tax implications of any changes made to a Will. Eric Robinson Solicitors offers fully authorised and regulated Estate Administration and Probate services to families and individuals across England and Wales and we have over 50 years of experience on our side.

Can a Deed of Variation be challenged? 

In order for a Deed of Variation to be legally binding, it needs to be approved and signed by all the beneficiaries and the executor. Any of these individuals can challenge a Deed of Variation simply by refusing to sign it.

How Eric Robinson Solicitors can help

Probate, Estates, Trusts and Estate Administration is complex. You will need a private client representative from a law firm on your side to talk you through the details. 

Our solicitors are Wills and Probate specialists with expertise in several areas including: inheritance tax, tax planning, trusts, property law and family law. We understand family wealth and affairs is a sensitive area for every client, and every family situation is different. If you would like to speak to a probate solicitor from our team about an issue you are facing, please don’t hesitate to get in touch and contact one of our offices today

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