Myth vs Fact: Can a Will really be changed after the person dies?

When a loved one passes away, their Will is often seen as their final word on how their estate should be distributed. But what if circumstances change, or someone feels the Will doesn’t reflect the deceased’s true wishes? Is there really a way to adjust the terms of their Will after death?

The answer lies in a legal tool called a Deed of Variation.

In this article, we’ll explain what a Deed of Variation is, how it works, and answer some of the most common questions about changing a Will after someone has died. We’ll also shed light on what happens if someone passes away without a Will in place.

What is a Deed of Variation and why would you use one?

A Deed of Variation is a legal document that allows beneficiaries to change the way an estate is distributed after someone has died. It can be used to redirect assets a beneficiary has received under a Will.

Beneficiaries under an intestacy can also redistribute inheritance where there is no Will, whereby the law decides who inherits, otherwise known as the Rules of Intestacy. (These are not the same across the different countries of the United Kingdom; this blog deals specifically with the laws of England and Wales.)

Why might you want to change a Will after death?

There are several reasons why someone may wish to use a Deed of Variation to change a Will after death. They include:

Inheritance Tax (IHT) Planning and Efficiency

If the deceased’s estate faces a significant IHT bill, a beneficiary can redirect some assets to exempt beneficiaries such as a spouse, civil partner or charity.This can reduce the IHT liabilities.

In this scenario, anyone becoming a beneficiary would be viewed as a “new” beneficiary. This means they can receive the funds free of IHT.

Deeds of Variation can also be used by beneficiaries as a tax planning tool.

Supporting Family Members

Sometimes circumstances change, and you may wish to redirect part of an inheritance to a younger family member, like a grandchild, who needs it more, perhaps to go towards the costs of further education or buying a first home.

Distributing Fairly

A Will might not account for family dynamics or events that occurred after it was written. In this case, a Deed of Variation can help everyone to feel treated fairly, ensuring siblings or other family members receive an inheritance if they were originally excluded from the Will.

For example, imagine an estate where most assets were left to one child, but the other children provided significant care for the deceased. If the original beneficiary agrees, a Deed of Variation could be used to recognise their contributions by redistributing the estate more equitably.

If you are a beneficiary considering making a change to a Will, it is advisable to take the advice of a Private Client solicitor to be sure you understand the full implications. They can also ensure the Deed is properly drafted and executed. You could also read up about the Thresholds, Rules and Allowances for Inheritance Tax.

How does the Deed of Variation process work?

The process follows strict legal guidelines.

1. Only beneficiaries named in the Will can execute a Deed of Variation.

2. All beneficiaries who would be affected by the change must agree to the proposals.

3. Executors must be a party to the Deed if the tax position is to be changed.

To make a change via a Deed of Variation, the following criteria must be met:

• The Deed must be carried out in writing
• All affected beneficiaries making the changes must agree and sign the document
• The changes must occur within two years of the testator’s (the deceased’s) death for tax planning purposes
• It must clearly outline what is being changed, and who is set to benefit from the proposed changes
• It needs to be witnessed by independent people who are not beneficiaries, executors, or their spouses
• If charities are included, they must be given formal Notice

What’s the timeframe for making changes to a Will?

A Deed of Variation can be completed before or after the Grant of Probate.

Probate is the legal process of validating a Will and authorising executors to distribute the estate. If the estate is straightforward, the process of creating a Deed of Variation may take as little time as a month. However, if there are complications, such as affecting a beneficiary who lacks mental capacity, the court must approve the variation and this can lengthen the process.

It should be noted that if the Deed of Variation results in changing the IHT liability, within six months of the variation a copy must be sent to HMRC.

Can you use a Deed of Variation to change the executor of a Will?

No, a Deed of Variation cannot be used to change the executor.

However, if an executor is unwilling or unable to act, they can:

• voluntarily step down by signing a renunciation
• be removed through a court application
• have power reserved to them

What happens if there is no Will?

When someone dies without a Will, their estate is distributed according to the Rules of Intestacy. These rules are rigid and prioritise close relatives like spouses, civil partners and children. But what if those default rules don’t actually reflect what the deceased would have wanted?

Beneficiaries under intestacy rules can still use a Deed of Variation to redistribute assets. This can be particularly useful in certain cases. For example:

• a loved one wishes to support other family members, such as stepchildren or grandchildren, who aren’t covered by intestacy rules
• a portion of the estate could be gifted to charity

For example, if an unmarried individual dies without a Will, their estate might go entirely to their parents. However, the parents could agree to redirect some of the inheritance to the deceased’s partner or the partner’s children using a Deed of Variation. Gov.uk provides further helpful guidance on who can inherit if there is no Will.

There is no doubt that making a Will is one of the most beneficial things you can do for yourself and your family. Dying without one can have serious implications for your family and result in a very time-consuming process. Find out more about the reasons not to delay writing your Will alongside some of the common questions about writing a Will.

Limitations to keep in mind

There is no doubt that a Deed of Variation can be a very useful tool, but there are certain restrictions. In particular, it cannot override the rights of minors (under 18s). If a child is named as a beneficiary, their inheritance cannot be altered by a Deed of Variation.

For instance, if grandparents leave their estate to their grandchildren, but they are under the age of 18, the inheritance ‘earmarked’ for those grandchildren cannot be reduced or redirected to someone else.

Final thoughts

The idea of changing a Will after someone’s death might seem confusing or even impossible, but it’s entirely reasonable and feasible under certain circumstances. A Deed of Variation offers a way to adapt to changing family dynamics, improve tax efficiency, or reflect the true wishes of your loved one.

Whether you’re in the process of making or changing a Will, or you’re a beneficiary seeking guidance on how to proceed, K J Smith Solicitors are here to help. Our experienced team can guide you through the complexities of Wills and inheritance law, ensuring you understand your options and their implications.

We offer a free initial 15 minute telephone appointment to give you the opportunity to speak to us about our Will writing services, before deciding if you wish to proceed in instructing us to act on your behalf.

Get in touch today to discuss how we can support you in making informed decisions for the future.