Deed of Variation: changing a Will after death

While it may sound like shenanigans, it is perfectly legitimate to change a person’s Will after they have died. The only proviso is that any beneficiaries who are left worse off by the changes must agree.

When can it be useful to change a Will?

There can be any number of reasons why beneficiaries may wish to change a Will. Common ones include:

• If the testator’s Will has not been drafted in the most tax-efficient manner, usually because they did not take advantage of available tax reliefs, changing the Will can reduce the amount of Inheritance Tax payable by their estate.
• Sometimes an inheritance is not wanted or needed. For example, you may decide that a parent’s legacy should pass instead to your own children, which can be a good way of reducing your own exposure to Inheritance Tax.
• On occasions, beneficiaries agree to change a Will to clear up any uncertainty or provide for somebody they believe the testator has unfairly or erroneously omitted from the Will.
• Beneficiaries may agree that there is an advantage to moving the testator’s assets into a trust.

How do you change a Will after death?

Although a formal document is not essential, in most cases a Deed of Variation helps to provide clarity, particularly concerning whether the variation meets the requirements of the Inheritance Tax Act 1984 (for Inheritance Tax) and the Taxation of Chargeable Gains Act 1992 (for Capital Gains Tax).

If the variation is to take advantage of available Inheritance Tax and Capital Gains Tax benefits, it is essential that it is finalised within two years of the date of death, so time is of the essence.

What about where there is no Will?

If the deceased died without making a Will, they are referred to as having died ‘intestate’. In these circumstances, the law decides who inherits. However, beneficiaries under an intestacy can still agree to make changes in the same way as if there was a Will.