Varying a will after death typically allows beneficiaries of a will or intestacy (when someone dies without a will) to change the way the deceased’s estate is distributed, even after death. While the original terms of the will are legally binding, a deed of variation enables those entitled to inherit to redirect all or part of their entitlement The changes are treated as if they were made by the deceased person. Not every beneficiary necessarily has to agree (see below) and a Deed does not usually need to be completed before probate is obtained.
A deed of variation can also be used where there is no Will to change an entitlement arising under the intestacy rules.Provided the statutory requirements are satisfied and the appropriate wording is included, the variation can be treated for IHT and/or CGT purposes as though the deceased had made the revised disposition.
A variation intended to obtain the special IHT or CGT treatment must generally be completed within two years of death.
Reasons to vary a will post death
There are 5 main reasons in our experience :-
For Inheritance Tax reasons - Consulting with a qualified tax advisor or solicitor is essential. The executor must inform HMRC about the Deed of Variation to ensure accurate tax calculations.
Providing for someone left out - a family member or dependent (such as a stepchild, long-term partner, or carer) might have been excluded from the will, either unintentionally or due to changes in circumstances. The variation might resolve potential disputes or create a more practical division of assets.
Redirecting assets to skip a generation - e.g straight to grandchildren
Changing an impractical division of assets - sometimes the Will produces an outcome which is legally valid but inconvenient in practice.For example, several beneficiaries may inherit interests in the same property or family business when they would prefer one person to retain a particular asset and the others to receive different assets or value elsewhere in the estate.
Protecting assets from care home fees or divorce
Where some or all of the gift is shares in a family owned business - a Deed of Variation may be used to restructure the deceased's estate to potentially qualify for Business Property Relief (BPR), which provides a tax exemption on certain business assets, including property used for a business. By using a Deed of Variation, beneficiaries can look to ensure their inheritance qualifies for BPR.
Do all beneficiaries have to agree a deed of variation of will?
All beneficiaries affected by a Deed of Variation must agree to the changes. If a beneficiary refuses to sign, the Deed of Variation cannot be implemented, and the original will will stand. It's important to ensure that all beneficiaries understand the implications of the variation and agree to it willingly.
How we can help & our service
Having an independent lawyer involved can also help reduce the risk of family friction by providing neutral, professional guidance - ensuring that decisions are fair, balanced, and clearly documented.
A Deed of Variation can look straightforward. In practice, the important questions are often who needs to agree, exactly what is being changed, whether the proposal creates tax consequences and whether it leaves the executors with a clear and workable basis for distributing the estate.
We can help with:
Working out who needs to agree – identifying whose entitlement is actually affected and whose consent and signature are required.
Dealing with a beneficiary who will not agree – establishing whether their consent is actually necessary and whether the variation can be restructured around their existing entitlement.
Deciding what to vary – advising whether to redirect the whole inheritance, only part of it or particular assets.
Creating a trust – advising on variations involving trusts for children, grandchildren or other beneficiaries and the additional legal and tax implications.
Tax planning – considering the IHT and CGT implications and ensuring the appropriate statutory wording is included where required.
Protecting the parties – making the terms sufficiently clear to reduce the risk of later arguments about what was agreed.
Dealing with executors – ensuring the personal representatives understand the revised distribution and involving them where legally or practically necessary.
Keeping the estate moving – considering whether probate, asset sales and other aspects of the administration can continue while the variation is being finalised.
Family disagreements – advising where beneficiaries have different objectives or one person refuses to cooperate.
HMRC requirements – advising whether HMRC needs to be notified and dealing with the relevant requirements where appropriate.
In choosing Taylor Rose you get highly experienced, specialist legal advice at fee levels which are competitive. With over 15 offices in England & Wales, 8 of which are in London, we can asssit you wherever you are in England & Wales.
Where there is already a dispute, we can also consider whether a Deed of Variation alone is sufficient or whether a wider settlement agreement and releases from future claims should form part of the arrangement.
Are there any alternatives?
There are often quite specific reasons, including those we detail above for a deed to be needed. There are other possible alternatives including :-
Disclaiming your entitlement – this does mean completely disclaiming your entitlement and also not being able to decide who will benefit in your place.
Gift away your entitlement – this will constitute, for Inheritance Tax (IHT) a Lifetime gift. If you survive for at least 7 years after making the gift it becomes fully inheritance tax free.
Legal formalities
To be legally valid the deed of variation must be in place within 2 years of the death and will need to comply with the Inheritance Tax Act 1984 and the Taxation of Chargeable Gains Act 1992.
Key points include requirements that :-
The deed must clearly set out the variations.
The deed must be signed by any of the beneficiaries who are losing some of their entitlement.
The deed must be signed by the executors if the variation will increase liability for Inheritance tax.
The deed must be signed by executors if the Variation increases the Inheritance Tax payable.
How much will it cost?
We fully appreciate why legal fees are always an important factor for clients. Drafting a deed where all necessary parties are fully on board and where the deed is straightforward will typcially cost from £750.00 plus VAT. Fees above that level will often depend on the underlying situation and any complications. You will find our fees to be competitive in the legal market. With offices (more than 5) in London and in many other places in England % Wales, we offer a nationwode service.
If you are considering a Deed of Variation for an estate you are involved in, we strongly suggest that you seek independent legal advice, as the implications can be significant. If you want more information on changing a will after death, contact us today.
