Changing a will after someone has died
It is sometimes possible to change a will after a person has died. In some circumstances, there may be no need to alter the will in this way (see disclaimers).
The reasons why you may wish to alter a Will include:
- To reduce the amount of inheritance tax payable by the estate/beneficiaries (see Tax Savings).
- To aid with the tax position or tax planning of a beneficiary. For example, by passing property directly to the children of an elderly beneficiary, it may prevent inheritance tax having to be paid on the death of the parent. To provide for a needy beneficiary.
- If all the beneficiaries agree then the terms of the Will can be changed by a deed of variation.
- If there are no children under 18 as beneficiaries then changing the Will is a relatively simple matter, provided that all of the beneficiaries agree.
- Where there are children an application must be made to the court for consent. It is always best to seek ways of avoiding court applications so in this situation alternative ways of reaching the same result should be discussed fully first.
- As with any sort of care cost planning, if a Will is varied with the intention to avoid care home costs, the local authority has the right to ignore the alteration when conducting its assessment.
What if there is no will?
If there is no Will, the rules of intestacy apply. However, the beneficiaries under the intestacy rules may still agree between them to vary the distribution of the assets.
A deed of variation can be used to reduce an inheritance tax liability. If the assets are passed to an individual who may have an inheritance tax problem themselves they could elect to have the assets passed to their children instead, thereby reducing their estate. If this is the case it is the deceased who is deemed to have made the gift (as if the gift had been made in the Will) and not the original beneficiary.
Increasing the Inheritance of a Needy Beneficiary
Sometimes a deed of variation is used to increase the inheritance of a particularly needy beneficiary, for example a surviving spouse or civil partner. This is particularly relevant in an intestacy as the amount payable to a surviving spouse can be as little as £250,000.
A beneficiary under a Will may choose to reject their gift. This is called a disclaimer. It is possible to disclaim a benefit under a will and also an entitlement on intestacy. The disclaimer must be made before the beneficiary receives some benefit. For example, they cannot disclaim the property after the beneficiary has lived in a house left to them, or after they receive a dividend from shares.
The beneficiary has no control over the asset once it is disclaimed. The Will may say what happens if a gift is disclaimed. Failing that, the property is returned to the estate and it depends on the type of gift that has been disclaimed. For example, if the gift was a pecuniary or specific gift that gift will fall into the residue. If the beneficiary disclaims a gift of residue, the disclaimed property will fall into intestacy.
Contact our lawyersabout Varying a Will
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