You might be wondering if you can change a Will after death, especially if you’ve been made the executor of a Will, or you’re due to inherit something.
There are certain circumstances where changes can be made to a Will after death via a Deed of Variation.
We will talk you through how this works in our comprehensive guide.
Can you alter an existing Will?
In some situations, it is possible to alter a Will after death. A document called a Deed of Variation can be created on the instruction of the executors who are named in the Will to administer the estate. To do this, anyone who benefits from the Will (the beneficiaries) have to all be in agreement, especially if any of them will end up worse off.
How to avoid altering a Will
Ideally, a Will should not have to be altered if it has been drawn up correctly in the first place. This is why it’s so important to seek professional advice when you make a Will, and enlist the help of a Will writing expert or solicitor. This will eliminate the need for a Deed of Variation, saving you both time and money, as they are more expensive than the Will itself. For advice on making a Will, contact us today.
How long after death can a Will be changed?
A Deed of Variation must be made within two years from the date of death. So, if you are looking to change a Will, it is vital to do this as soon as possible in order to meet the deadline.
Can I make a Deed of Variation myself?
Technically, you can write a letter, as long as it meets certain legal requirements. However, as with any key legal documents, we would advise that a Deed of Variation is drawn up by a professional to minimise any mistakes.
You can end up in serious trouble if you do not pay the correct tax to HMRC, and could face harsh financial penalties for any errors. There can also be issues with complicated tax requirements.
Why make a Deed of Variation?
There are many reasons why a Deed of Variation to a Will may be required, including the following:
You don’t need or want your share of the inheritance
You might want your share of the inheritance to go to someone else, or to a charity. This may be all or part of the amount. This is also a way to reduce the amount of inheritance tax deducted from the money which may be beneficial for the estate, or for your own inheritance tax position.
The Will is not what the person really wanted
Before they died, your loved one may have talked about altering their Will but did not get a chance to do this. A Deed of Variation can make those changes, as long as anyone affected by them is in agreement.
The Will doesn’t include people born after it was written
This could include children or grandchildren who were born after the Will was made.
Someone thinks the Will treats them unfairly
If someone believes they haven’t been left enough in the Will, or haven’t been left anything, they can confirm in writing what they want and why they should receive it.
If someone was financially dependent on the deceased, they can make a claim using the 1975 Inheritance (Provision for Family and Dependants) Act, which must be done within six months of probate being granted.
The other beneficiaries will need to agree on what the person should receive, and the Will can then be changed through a Deed of Variation.
There is an error in the Will
An error in the Will can actually make it invalid and the estate is then shared out under the Rules of Intestacy.
This could be because the person was not mentally capable of making the Will, or the document was not signed or witnessed correctly.
However, if there is just a simple typing or spelling mistake, the court can change this with an application for rectification.
Uncertainty in the Will
There could be an issue with how the Will is worded, or the details of an asset not being specific enough. If that is the case the Will can be changed to correct matters, but if it is still unclear, the court can also step in to decide.
Making gifts even
You might decide as a family to make things more even for all beneficiaries. For example, if one child has a smaller amount left to them than their siblings.
Assets in a Will are subject to tax. This is usually 40% Inheritance Tax on everything over £325,000 (except in certain circumstances).
Plus, Capital Gains Tax may apply if you sell or give away assets where the value has increased from the date of death.
As a result, making changes to a Will can be more tax efficient. However, there can also be circumstances where reducing one share leads to the executors being liable for more Inheritance Tax.
If you are unsure about the tax implications of changing a Will, please speak to a professional Will writer or solicitor.
Moving the deceased’s assets into a trust
A trust is a legal arrangement where you give cash, property or investments to someone else to look after for the benefit of a third person.
Setting up a trust can also be a way to save money or minimise Inheritance Tax.
What changes can I make to a Will?
As with making a Will, there is no specific law that determines who can inherit under a Deed of Variation. However, there are some points to consider, as you can:
- Only make changes to your share of the inheritance
- Redirect particular assets to specific people
- Give away all of your entitlement
- Set up a trust
What changes can’t I make?
You cannot use a Deed of Variation to:
- Alter other people’s inheritance without their consent
- Award yourself a larger share of the estate (although another beneficiary can agree to gift it to you)
- Change any executors or guardians named in the Will
Is there anything else to consider when making A Deed Of Variation?
Altering a Will through a Deed of Variation can be a complex process.
The main thing to ensure is that anyone affected by the changes understands the potential consequences of them and is in agreement with them.
What if there isn’t a Will?
If someone dies ‘intestate’ (without a Will) then the Rules of Intestacy apply to their estate. The rules are rigid about who inherits and the amount they receive and may not reflect family circumstances. That’s why it’s so important to make a Will as soon as possible.
Can power of attorney change a Will after death
Unless the Will is invalid, a power of attorney cannot change a Will after death.
How ELM can help
Our experts have years of experience in changing a Will after someone’s death. Everyone’s circumstances are different, so we will work with you no matter how simple or complex your requirements.