subject: Post-death variations [print this page] Post-death variations Post-death variations
A Will is the means through which an individual ensures chosen beneficiaries receive the assets or cash he or she wants them to have on death. Whilst the personal representatives are obliged to distribute the estate in accordance with the terms of a Will or in accordance with the rules of intestacy where there is no Will, a beneficiary is not legally obliged to accept it.
People's circumstances change and it is not uncommon for a beneficiary to prefer another legal beneficiary of the estate or even a third party to receive the gift intended for them. Sometimes part of an estate can be redirected specifically to save inheritance tax.
Suppose you leave a cash gift of 10,000 each to your two sons. One of them then wins the lottery and, on your death, decides he has no need of the gift and chooses instead to let his brother have it. It is not uncommon to vary the terms of a Will so that this type of gift can take place. Varying a gift is straightforward. A variation is different because the beneficiary concerned effectively redirects the gift or even part of it. It is usually done by means of legal deed called a Deed of Variation and is commonly used as a tax saving device to pass assets to the deceased's spouse, for example, because it would then be entirely exempt from IHT, thus reducing the inheritance tax burden on the estate.
In addition to varying a Will, using a Deed of Variation it is also possible to simply disclaim' a gift after someone's death. The beneficiary would need to give formal notice to the personal representatives and if it is specifically to save IHT notice must be given in writing. Once a gift is disclaimed in this way the PRs then distribute the relevant gift or legacy to the individual/s next entitled under the will.
The general rules relating to varying or disclaiming a gift also apply in cases of intestacy (that is where an individual dies without making a will). In intestacy cases the law directs the order in which assets are distributed, but it may be that the beneficiaries decide that this is not suitable in the circumstances. For example, the deceased's spouse is well off and has no financial needs and therefore he or she disclaims the assets which will then pass to the children who are paying off student debts.
Where there are changes in circumstances it is always preferable to amend your existing will having spoken with your beneficiaries where necessary. But the option of varying a will or disclaiming a gift is a valid alternative although it will add to the costs of the administration of the estate. Whether you are reconsidering the terms of your Will or you are an executor or a beneficiary who needs specific help it is crucial you seek expert legal advice from a specialist in probate and estate administration.
There are places you can go to get free legal advice and many of them are online for easy access when you need help with UK Probate and other services
