The Administration Of Your Estate – Deeds Of Variation
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Want to make a start on your will?
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
Circumstances may change between the time the testator makes his will and the time he dies. His estate may increase or decrease.
Family quarrels which led to the exclusion of a child may long since have healed. Leaving a lot of money to a beneficiary who has considerable money of his own may simply create a tax problem in his own estate. Currently it is possible to enter into a deed of variation, also known as a deed of family arrangement, to vary the terms of the will.
By statutory concession the revised will is deemed to have been made by the testator himself. It is thus possible to rewrite the terms of the will so as to direct money to beneficiaries who are exempt from tax or to set up a trust of the nil rate band. The variation is effective for inheritance tax purposes and, in many cases, capital gains tax purposes as well, depending on the terms of the variation. For all other purposes, the money which is redirected is a gift from the beneficiary who loses it to the new beneficiary who receives it.
For instance, a widow could not arrange a deed of variation so as to divest herself of assets in order to qualify for local authority funding for care fees. (see https://www.iwc-ltd.co.uk/probate–deed-of-variation)
A beneficiary may also disclaim a legacy by signing a deed of disclaimer.
In that event it is the specific gift which is disclaimed. A beneficiary may not disclaim in favour of another.
Both a disclaimer and a deed of variation are post-death arrangements but may be drawn up prior to probate if required.
Professional advice will always be necessary before a deed of variation is entered into, not least because such deeds are most usually made when inheritance tax is a major consideration.
The deed must also be correctly worded in order to comply with the relevant legislation. In particular, it must show that the parties involved intend the appropriate sections of the Inheritance Tax Act 1984 and Taxation of Chargeable Gains Act to apply. See https://www.legislation.gov.uk/ukpga/1984/51/contents