Can a will be changed after death?
You may have thought that a person’s will was set in stone, but, changing a will after death is both possible, and in many cases, a perfectly reasonable step taken by families whose loved one has passed away. But how can a will be changed, and what exactly does a deed of variation do? We’ll explain how the process works in this guide.
What is a deed of variation?
A deed of variation is a document that changes the way that someone’s estate is distributed following their death from the way it was laid out in their will. The estate refers to everything owned by someone when they die, including property, possessions, money and even the value of a life insurance policy.
Can beneficiaries change a will?
Yes they can. In fact, in order to be able to change a will after someone’s death, you have to be a beneficiary. Our guide to being a life insurance beneficiary has more information on who can be chosen as a beneficiary, and how life insurance payouts work.
Reasons to change a will after death
On the face of it, changing a will might seem like a drastic move, but there are circumstances where it can be advantageous. Here are some reasons why pursuing a deed of variation can be a smart idea:
- You can add beneficiaries to a will. If a will was written before another child was born, for example, they may not be included in the original provisions. Making a deed of variation will ensure that no one is unfairly left out.
- Financial fairness. Circumstances change, and it may be reasonable to change a will if people’s needs have evolved. For example, if one beneficiary has become wealthy (or significantly less well-off) you may collectively decide against an equal split of the inherited funds.
- Clarity. If there is any ambiguous wording in the will, the deed of variation is an opportunity to settle any misunderstandings. You could also consider a codicil for minor amendments.
- Tax advantages. You may be able to reduce your Inheritance Tax (IHT), and even Capital Gains Tax liability by implementing a variation of a will, as we’ll explore next.
Deed of variation and Inheritance Tax explained
The standard rate of Inheritance Tax (IHT) is 40% – this is charged on a deceased person’s estate above a threshold of £325,000. If a beneficiary wishes to reduce their IHT liability, making a variation of a will can help them achieve this. Here’s how:
- If a beneficiary wanted to gift some of their inheritance to someone else, such as one of their own children, they can add a new beneficiary to the will and direct some of the funds to them. Since they would be a new beneficiary, they would be able to access the money without paying IHT, whereas if they’d been given the money as a gift from the original beneficiary, the ‘seven year rule' would apply (if you die within seven years of leaving a gift, there may be as much as 40% IHT to pay on it).
- They can redirect part of the estate to an exempt beneficiary, such as a spouse who is exempt from paying tax.
- They could also reduce the amount on IHT owed on the estate by gifting a portion of the funds to charity.
How to change a will after death
You can change a will after a death without using a specialist will writer, usually free of charge. A request for a deed of variation can be made by the beneficiary, and it doesn’t always require an official document, deed or registration – you can simply write a letter. The executor of the estate needs to agree to the amendments before it becomes legally valid.
Your request will need to meet certain legal requirements, so it may be advisable to consult a legal expert beforehand. For example, as far as HMRC are concerned, the variation must:
- Be carried out in writing.
- Include a clear statement about which elements of the will are changing, and who stands to benefit.
- Be signed by all beneficiaries who could experience a negative impact from the changes and by the beneficiary who is varying their entitlement to the estate.
- Be witnessed by someone who is not a party to the deed or their spouse.
If the variation changes the amount of IHT due, you should send a copy to HMRC within six months of the variation being made.
Can you do a deed of variation after probate?
Yes, you can organise a deed of variation before or after a Grant of Probate (which gives you permission to manage the deceased’s estate) has been obtained. Note, however, that there is a deed of variation time limit – the variation must be undertaken within two years of the death.
How long does a deed of variation take?
A deed of variation will typically take up to a month to complete, and can be done in as little as two weeks. But there are circumstances where it could take longer; for example, you may need to make a court application if one of the beneficiaries is a child or does not have the mental capacity to agree to the variation.
Can a deed of variation change the executors?
No, it’s not possible for a deed of variation to change the executors of a will. But as we’ll cover next, there are circumstances where an executor can be removed.
How to change the executor of a will after death
To remove someone who’s been appointed as an executor by the testator (the deceased), the executor in question would either need to sign a renunciation, which means they would no longer be entitled to manage the deceased’s estate. Failing that, a court application would need to be made by issuing a claim, or applying to the Probate Registry, to remove someone as an executor.
What happens if there is no will?
If someone dies without leaving a will, their estate will be distributed according to a legal default, which is known as dying ‘intestate’. We cover the intestacy rules in detail in our guide to dying without a will.