Changing a will after death – using a deed of variation

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If someone dies and leaves a will, or even if they die without a will, it may be possible to change what they leave and who to. You can do this with a deed of variation. Find out about changing a will after death.

Q. Changing a will after death – when can you do it?

A. A deed of variation is a way of changing a will after death. It can also be used if they haven’t left a will at all (have died intestate). It’s most commonly used to save inheritance tax or capital gains tax, but it can be used in other situations as well. One example would be if a family member didn’t want to accept an inheritance. It can be particularly useful if someone drew up a will some time ago and the rules or allowances on inheritance tax had changed since then.

Q. Who needs to agree to a deed of variation?

A. It’s often said that everyone who’s been left something in a will has to agree to a deed of variation. But that’s not the case. If you want to change who inherits through a deed of variation, then anyone who will be left worse off by the new will must agree to them.

SAVVY TIP: If a deed of variation is going to affect the inheritance of a child (or any future children), you’d probably have to go to court to get permission. It wouldn’t be enough for a parent to sign a deed of variation on behalf of their child.

Some people think that the executors (who are people who’ve been appointed to deal with the legal affairs of someone who’s died) must agree to any change in a will through a deed of variation. However, that’s not the case.

Q. How change a will after death

A. You don’t need to use a solicitor if you’re changing a will after death, although it may be a good idea to do this. One advantage of using a solicitor is that there’s someone you can sue if he or she makes a mistake!

The Gov.uk website says that if you’re varying a will and you’ll end up paying the same inheritance tax or less as a result, you don’t need to have a formal form to set up a deed of variation. Instead, you can simply write a letter (make sure it’s been signed by the person giving up their inheritance).

Q. Are the rules different if you’re using a deed of variation to save inheritance tax?

A. Yes. In that case, you need to use some legal language and to quote the relevant legislation in full. There’s a form called the ‘Instrument of Variation checklist’ on the Gov.uk website that suggests which terms you should use, but it might be a better idea to use a solicitor.

If the deed of variation means the estate will owe more inheritance tax afterwards, you’ll need to send a copy of the letter or deed to HM Revenue and Customs, but otherwise you don’t need to.

Q. When do you have to set up a deed of variation by?

A. A deed of variation must be done within two years of the person dying.

Useful links:

Gov.uk information on changing a will after death

Instrument of variation checklist on the Gov.uk website

Related articles: 

VIDEO: How to save inheritance tax and pay less

When can you challenge a will? How a will can be contested

Understanding the inheritance tax allowance or ‘nil rate band’.

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