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How can you change a Will after death?

How can you change a Will after death?

How can you change a Will after death?

You may feel that when you make a Will there should be no circumstances where it can be changed however you may be surprised to learn that it is indeed possible (and often desirable) to change a Will after a person’s death.

It’s an unusual occurrence and the likelihood is lessened by making sure that you have a regular review of your Will so that it doesn’t become out of date.

But sometimes things happen that mean that the beneficiaries decide that they would like to change the contents of the Will and in this case, they would need a Deed of Variation.

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

When might you need a deed of variation?

When someone dies and leaves a Will it distributes their assets according to their wishes at the time the document was produced. However, as we know things move on and it is possible that the original document might become outdated.

There are several reasons why someone might want to change a Will after death;

  • To include someone who didn’t originally feature – perhaps a new grandchild has been born since the Will was made.
  • Balancing up the bequests – such as when someone has left an asset that has appreciated in value considerably and their bequest now looks much larger than the others.
  • Where a named beneficiary, such as a charity no longer exists
  • Where a named, specific asset no longer exists or has been disposed of
  • To reduce inheritance tax – It is possible that the original Will doesn’t work in the most tax-efficient way and a deed of variation can help.
  • To clear up any uncertainty in the original Will – there may be some parts that don’t appear to be straightforward in retrospect.

In these cases, the beneficiaries may decide that a Deed of Variation is needed.

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

How to apply for a Deed of Variation

It is possible to apply for a variation with a simple letter however it is good practice to do this in the shape of a more formal deed as this can ensure that the changes are enforceable.

This can be done either before or after probate but importantly there is a time-limit for tax purposes of two years from the date of death and can even be completed where the original beneficiary has taken ownership of the asset itself.

The first requirement is that the variation has to be made by the person who originally benefitted from the asset concerned and who is giving up part or all of the benefit. If it is a single asset then only the beneficiary of that asset needs to be involved but if it is a more general redistribution then all beneficiaries must agree.

As you would expect, the person giving up the benefit needs to be able to do so legally, so they need to be over 18 and have an understanding of what they are actually doing.

Clearly, the deed has to detail what asset is affected and what changes you wish to make, perhaps you want to change the destination of the asset or you wish to make a different split of cash between beneficiaries.

The deed also needs to contain what is called a ‘statement of intent’. In other words, it specifies that the beneficiary intends the relevant sections of the Inheritance Tax Act 1984 & the Taxation of Chargeable Gains Act 1992 to apply.

It is important that the original beneficiary hasn’t been coerced or received any other payment to induce them to make a variation.

Surprisingly the executors don’t need to be involved unless the variation results in more tax becoming payable however in practice it is sensible to include them fully in any discussions.

Once the deed has been produced and properly signed and witnessed it assumes legal force but if you are using it to reduce tax payable then you’ll need to send a copy to HMRC. They produce a handy checklist here that gives you the elements that the deed needs to include to make it compliant for tax purposes.

It is really important to be aware that once a variation has been made it can’t be revoked, so we would always suggest that you take legal advice before entering into a deed of variation.

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

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