Can you change a Will after death?

It is not possible to make changes to someone’s Will after they have died. However, it is possible to change the distribution of the estate. Beneficiaries (those who are entitled to inherit the estate) can enter into a Deed of Variation which will then change the way the estate of the deceased is divided up. It is also important to know that beneficiaries can also enter into a Deed of Variation where there is no Will.

The purpose of a Deed of Variation is to change the recipients of a share in the deceased’s estate.

How does a Deed of Variation Work?

If a beneficiary of an estate decides to divide their share in the estate or to instruct their share to be given to someone else, the only way to do this is to enter into a Deed of Variation. The Deed of Variation does not change any of the terms of the Will – the terms of the Will set out the deceased’s intentions. However, it does change where the estate finally ends up.

Where the deceased died intestate and there is no Will, a Deed of Variation will change where a beneficiary’s entitlement ends up.

To be valid, a Deed of Variation must contain the following elements:

• It must be entered into within 2 years of the death of the deceased
• It must clearly set out to which part of the estate it relates
• Those who are to benefit must be clearly named
• It needs to be signed by all beneficiaries who take part in the redirection of the estate
• It must include a statement advising that it is to be effective for Inheritance Tax (IHT) and Capital Gains Tax (CGT) purposes
• It is effective from the date the deceased died.

If a Deed of Variation does not contain all these items, it will not be considered valid.

Why use a Deed of Variation?

There are any number of reasons for using a Deed of Variation. Perhaps one of the most obvious reasons is to reduce or eliminate exposure to IHT. To reduce IHT, the beneficiaries might decide to donate part of the estate to charity to reduce the value of the estate that’s subject to tax. If the charitable donation is more than 10% of the value of the estate, the percentage of IHT payable is reduced from 40% to 36%. This can result in significant savings in very large estates.

Another reason to use a Deed of Variation is to pass on an early inheritance to children. For example, if a husband leaves his entire estate to his wife (and we will ignore Legal Rights for the purpose of this example), rather than waiting until she dies to pass on part of her estate to the children, she might elect to pass on a substantial sum, perhaps to the IHT threshold of £325,000 which reduces the amount of her likely estate available when she passes away. There is no IHT between spouses so she would have no IHT to pay in this example.

Alternatively, beneficiaries might decide they wish to include someone who has been excluded from a Will. An example of this would be when the testator excludes a stepchild, but the beneficiaries want to include the stepchild in the estate. A Deed of Variation would allow the beneficiaries to make that adjustment.

Another example might be to even up an uneven distribution of the estate or to create an uneven distribution when the deceased Will indicated the estate should be shared equally amongst the beneficiaries.

These are just some examples where a Deed of Variation can be used.

If you are a beneficiary in a Will and would like some advice if you are thinking about redirecting all or part of your share in the estate, please contact us.