Divorce & Family
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When someone passes away, one of the early questions to ask is: did that person make a Will? If they didn’t, then any property, cash, valuable or sentimental items, can only be given to those family members entitled under the rules of intestacy. If they did make a Will, maybe it was made many years ago, and that person’s circumstances may have completely changed since then.
There are a number of things that family members can do if they think that the Will, or the intestacy rules, do not reflect what the deceased person would have wanted.
One option is for those family members or friends to make a claim against the estate, but this tends to mainly apply when people are upset by how little they have been left in the Will, and often only comes up if there are significant fallouts within the family.
If those affected are in agreement that the Will or intestacy rules are not really suitable in the circumstances, then it MAY be possible for a Deed of Variation to be drawn up to reflect the family’s wishes.
Some possible reasons for a Deed of Variation might include:
If many years have passed since the Deceased executed their Will, their family and personal circumstances may have changed quite significantly. They may have a long term partner not mentioned in the Will, or more family members such as grandchildren or nieces or nephews that they would have wanted to benefit.
If the beneficiaries in the existing Will, or under the rules of intestacy, that are willing to alter their entitlements agree, then this can be adjusted to reflect what the deceased might have preferred.
It is not uncommon for adult children of deceased persons to want to ‘skip’ a generation, and to benefit their own children instead. They can do this as a straight forward gift out of their own share, but often this will affect the tax position of that parent.
A more tax-efficient way of giving a gift from a share of an estate to another person is to vary the Will so that it is treated as if the deceased had made that gift instead. As long as the relevant beneficiaries agree, this can be a successful way to spread an inheritance amongst the wider family.
When Inheritance Tax (IHT) is due on an estate, a sometimes quite sizeable chunk of the assets are earmarked for the revenue. In some circumstances, changing who the recipients are of an estate can reduce this burden significantly, sometimes completely.
For instance, gifts to spouses are exempt from IHT, as are charities. Also, gifts to charities worth 10% or more of the estate’s value reduce the rate of tax payable on the rest of the estate.
But be wary, there are a number of strict provisions you must comply with in order for such a variation to be successful. Any charities that become a beneficiary MUST be notified. Also, no ‘consideration’ must be given for the variation – such as obtaining another family member’s share in ‘consideration’ for giving it to them later on as a lifetime gift. The revenue won’t allow tricks like this to circumvent the IHT rules.
There are a number of formalities for a Deed of Variation to be valid and legally effective, including (but not limited to) having the beneficiaries agree to the changes, and for any Deed of Variation to be completed within 2 years of the deceased’s death. Because the revenue will only allow one variation, it is especially important to get the right advice from an expert before rushing ahead. If your family would like to change a loved one’s Will once they’ve passed away, we can help you comply with all these formalities, whatever the reason for the change. Call one of our expert Wills and Probate solicitors today on 0800 470 1419 and they will be happy to help.
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