Can you change a will after a person has died? The simple answer: yes.

Can you change a will after a person has died? That might seem like a strange question. Surely a will is the last wishes of the deceased, and should be honoured?

But the answer is in fact “yes – a will can be changed after a person has died”.

The means to do this is through a Deed of Variation.

Why do people use Deeds of Variation?

People create variations for many reasons:

Some beneficiaries feel they don’t need the money, and therefore wish to pass the inheritance onto the next generation.
To manage some perceived unfairness in the will. If the deceased had a disagreement with one of their children, and had written them out of the will, the other siblings might decide to ‘write’ their brother or sister back in.
To take account of the differences in the personal finances of the beneficiaries. A wealthy daughter with no children, may decide that her less well-off sister, with children should receive more from the will.
To take into account other factors, e.g. one sibling might have undertaken all the care duties for the deceased, and the other beneficiaries might want to acknowledge this.
The deceased may have spoken about a change in their will, but never survived to make it. Family members might wish to honour that wish, particularly if it was to donate to a favourite charity, or to a new member of the family.
Sometimes wills can be badly written. A Deed of Variation may offer clarity.
To move the deceased’s assets into a Trust.
To reduce the amount of Inheritance or Capital Gains Tax payable. E.g by donating more to charity to reduce the rate of the taxable element from 40% to 36%.

What are the important elements to remember about a Deed of Variation?

A variation must be made within two years of the death.
The variation must be signed by all the people who would lose out because of it.
The variation must clearly identify the parts of the estate that are being varied.
A formal document or deed is unnecessary. But if the changes affect Inheritance Tax, you must contact HMRC within 6 months of making the variation.
You cannot make a variation on the assets of the deceased more than once.
The variation may need to be signed by the Executors or administrators of the will where the variation increases the Inheritance Tax payable.

Changing a will after death can be fairly simple, but there are some circumstances that need to be considered:

HRMC will need to know if there is more tax to pay, but also when the changes (for tax purposes) commence: date of variation, or date of death.
A variation may affect the interests of children, unborn beneficiaries or people without mental capacity. If this is the case, you may need to get the approval of the Court.
A Stamp Duty certificate may be required if the variation alters the destination of stocks, shares or marketable securities.

In many circumstances, a Deed of Variation may seem like ‘the right thing to do’, and notwithstanding tax issues, is fairly easy to do.

If you want to know more, please contact Jenny Barron on 01756 692866 or email jenny.barron@awbclaw.co.uk.