Changing a Will after death

Yes, in certain cases you can change a Will after death. Executors, the people who are named in the Will to deal with the deceased person’s estate, are able to change who receives what through a Deed of Variation. Any beneficiaries (anyone who benefits from the Will) whose entitlement will be altered by the Deed of Variation will need to be in agreement.

There are lots of reasons why our clients come to us for a Deed of Variation; it might be that the Will is out of date and doesn’t include recent family members such as grandchildren, or the inheritance may cause tax issues for a beneficiary.

It is vital to speak to us as soon as possible, as the Deed of Variation must be made within two years of the date of death. If an asset such as a property has already been sold when the Deed is created, the proceeds of the sale can still be transferred to the new beneficiary named in the Deed of Variation. To speak to our experienced team about your unique circumstances, click here.

You can try to put together your own agreement, but you risk landing yourself in serious trouble if you do not pay the correct tax to HMRC. As is always the case with probate, if you manage it yourself you will be financially responsible for any errors you make. HMRC is taking an increasingly hard line against errors in forms which cover inheritance tax. If you make a mistake, the penalties can be harsh. Read more about Probate and your responsibilities.

There are also important decisions that need to be made for Income and Capital Gains tax, as well as understanding the effect that the Deed will have on the inheritance tax owed and the inheritance tax position of the old and new beneficiaries. We can advise on this.

A Deed of Variation is a legally binding agreement between the Executors and beneficiaries of a Will which must be signed, but it does not need to be registered. HMRC may need to be notified, and if the Deed of Variation is regarding property, the Land Registry should be updated. The best way to understand your obligations around a Deed of Variation is to speak to an experienced solicitor. You can call our team on 01273 604123.

Only the beneficiaries affected can choose to change their part of the estate. For example, if your parent has left you and your sibling a share in a property, you can elect for someone else such as your child to receive your share, but you cannot insist that your sibling’s share is redirected. There are complications if the variation involves persons under 18 or who have a mental disability.

Most of the time preparing a Deed of Variation is spent discussing the options and allowing time for the Executors and beneficiaries to reach a decision. When we have advised you on the effects of a Deed, it may take some time for all involved to consider the matter and then agree before signing. Once everyone is in agreement on what they want to achieve, an experienced solicitor will not take long to draw up the Deed.

If there are concerns around mental capacity of beneficiaries, or any children are involved, then you should allow extra time for the additional work that will be required.

You cannot change the Executor of a Will after death, but the Executors are entitled to seek professional advice to help them in their duties.

Solicitors can become the project managers for probate, helping the Executors understand what needs to be done and when by. At Burt Brill & Cardens, we know that one legal service doesn’t fit all – every family and client is unique. Because of that, we tailor our services to what fits you best.

You might want to have some involvement such as clearing the property, dealing with utility bills, and distributing items that have been left to individual beneficiaries.

Alternatively, you may find yourself in a position where you need a more hands on approach from us. We provide additional services, such as help with the funeral arrangements, collecting and distributing assets amongst the beneficiaries, and arranging the cleaning of the property. For a more in-depth look at our services, click here.