Can you change a will after someone’s died?
If you’re the person looking after a loved one’s will (the executor) or you’re due to inherit something, you might be wondering whether the will is set in stone. This guide talks you through how and why people make changes to a will.
Technically, nobody can change a person’s will after they’ve died. But they can change the effect the will has. But they’re only allowed if all of the people affected by the changes agree to them voluntarily or by court order.
People make changes to wills for lots of reasons
Here are some of the most common:
Someone does not want their share of the inheritance
They might not mind where it goes instead. Or they might want it to go to someone specific, like their child, or to a favourite charity.
Giving some or all of their share away may also help reduce the inheritance tax that’ll get taken out of the money. Either in the estate or from their own inheritance tax position.
The people inheriting want to share things out more equally
Like if one child has been left less than their siblings, and everybody agrees that they should have the same amount.
The will does not include important people who were born after it was written
Like a child or grandchild of the person who has died.
The will does not reflect what the person really wanted
If your loved one talked about making changes to their will, but did not do it before they died, you can make those changes happen. But everyone who’ll be affected by the changes will have to agree to them.
Someone thinks they’ve been treated unfairly in the will
Or perhaps even excluded from it when they believe they should not have been. They’ll usually confirm in writing what they want and why they think they should get it. If they were someone who was financially dependent on the person who’s died, they may make a claim using the 1975 Inheritance (Provision for Family and Dependants) Act.
This is because they may not have been left enough, or anything, in the will which would be reasonable for their financial needs.
If a claim is being made under the Act, they must do it within six months of the ‘Grant of Probate’ being granted — that’s the document which gives the person named on it the formal authority to handle the estate administration.
There’s often some negotiation but if the other beneficiaries come to an agreement on what that person should receive, then the will can be changed through a variation. If the people involved cannot agree, the courts will decide what happens.
Someone thinks that the will was not created properly
Like if it wasn’t signed or witnessed correctly, or if the person making the will was not mentally capable of deciding what should go in it. If somebody thinks any of those things might be true, they can challenge the will and the decisions in it.
This would mean that the will would not be valid and the estate would instead be shared under the rules of intestacy or the wishes set out in an earlier valid will.
Clearing up any uncertainty or mistakes in the will
Occasionally, there may be a problem with the wording of the will, or even with the item or asset the will is gifting, which may prevent the gift from being given. This may be because the will is not clear or specific enough. If that is the case the will can be changed to correct matters. One of the ways to do it is through a deed of variation, as long as the changes are all agreed on by the people affected. Other than that the court can fix a mistake if it’s an obvious human error, such as a typo or spelling mistake, with an application for rectification. Or if there is uncertainty about the intentions of a gift the courts can also step in to decide on the matter.
Make sure your own will’s done right
Making changes to a will of someone who has died can be a lot of work. Our how to make a will guide has everything you need to know about writing your will properly, from choosing guardians for your children to making sure your pets are protected.
There are ways to reduce Inheritance Tax or Capital Gains Tax
HMRC will usually charge 40% Inheritance Tax on everything over £325,000 - called the nil rate band threshold - unless:
everything has been left to their spouse or civil partner or charity
Also if anybody that inherits assets (like property or shares) later sells or gives them away, and the value has increased from date of death, they may need to pay Capital Gains Tax.
What’s the nil rate band threshold?
This is a tax-free allowance for inheritance tax which is available for every individual. The UK government is planning to keep the threshold at £325,000 until 2026. If a person’s estate when they die is below £325,000, there will be no inheritance tax to pay.
By changing the will people may be able to to avoid or reduce these taxes
They can do this by:
Making the most of any tax reliefs or exemptions they’re allowed to use.
Such as passing everything to a spouse or civil partner, if the will doesn’t already do that.
An example case...
If the will leaves an estate worth £900,000 to the spouse and children equally, although the £300,000 passing to the spouse is exempt for inheritance tax, the other £600,000 isn’t.
So after you take away the nil rate band threshold of £325,000 there will still be 40% inheritance tax to pay on £275,000, which is £110,000. However, if the spouse and children are in agreement they could complete a deed of variation to either give everything to the spouse, so there is full spousal exemption applied to £900,000 estate. Or reduce the amount going to the children to equal to or below £325,000 nil rate band threshold.
Donating 10% of the net estate to a qualifying charity
By either increasing an existing gift or including a new gift to a charity. This reduces the inheritance tax rate to 36%.
Passing money or property straight to the children of the people inheriting it
This could be to avoid :
Combining two smaller estates into an estate large enough that qualifies for inheritance tax
For example if the person who died leaves an estate worth £300,000 to their child and that child’s estate is already worth £300,000 by inheriting their parent’s estate their estate will now be worth £600,000.
So when they die if they only have their nil rate band of £325,000 there will be 40% inheritance tax to pay on £275,000, which is £110,000.
However, to avoid this the child could instead complete a deed of variation to give away what they would have inherited to their own child, which would then leave them back to having an estate worth £300,000, which is below the nil rate band threshold so no inheritance tax is then payable.
Paying inheritance tax twice on the same asset
If the estate of person who’s died is already worth over the nil rate band of £325,000 then the person inheriting will have to pay the tax. If when they die and their children inherit everything they’ll have to pay that tax on the original estate, as well as their estate, again.
Capital Gains Tax
This applies to certain sorts of assets, such as property and shares.
For example, if a property has been specifically gifted in a will, there is no Capital Gains Tax charged as there is an uplift given. This is because the person who inherited the property is treated as owning the assets at its market value at the date of death.
However, if that person after receiving the property then wanted to give it away to their child as they have their own property, this could trigger a Capital Gains tax charge. This would be the case, if there has been significant gains made between the date of death value and date of the gift.
This could be avoided if the person who inherited completed a deed of variation to change the will and redirect the property to their child as that child would then benefit from the same Capital Gains tax uplift they would have had.
To get these benefits of avoiding inheritance or capital gains tax these changes to the will would need to be made within two years from the date of death of the person whose will you’re changing.
There are two main ways to change the effect of a will
And they both involve creating and signing a legal document. These two documents are:
A deed of disclaimer
This is drawn up when someone decides that they do not want to accept what’s been left to them in a will, but they do not mind who it goes to instead.
If it is not clear in the will who the gift should go to next, it’ll be added to the person’s ‘residuary estate’ — that’s everything that’s left over once gifts have been given out, and taxes or debts have been paid.
The residuary estate is then given to whoever the will says should inherit it. There are also some other important things to know about deeds of disclaimer, as follows:
You do not need to get permission from the other people mentioned in the will if you want to disclaim a single gift given to you.
But if you’ve been given a gift that’s shared together jointly with other people, you’ll need their permission to refuse your share.
If you’ve been given a gift (and it’s not shared with anyone), you cannot refuse part of it. It needs to be rejected in its entirety, so you could not refuse £5,000 of a £10,000 gift.
But if you’ve been given more than one gift, you can refuse some and accept others. So you could refuse some jewellery but accept a car.
You’ll need to get two witnesses to sign your deed of disclaimer. They should be ‘competent’ (meaning they understand what they’re signing) and, ideally, they should not be family members, or be mentioned in the will.
Once you’ve refused a gift, you can only change your mind if no one else is already relying on the gift. If you refused a gift of £1,000, and the person who got it instead used it to take out a loan, you would not be able to get that money back if you changed your mind. As someone else is already relying on it. X
And once you’ve accepted a gift, you cannot refuse it later.
A deed of variation
This is sometimes called a deed of family arrangement. It’s drawn up when one or more people who are inheriting something in the will want to change things.
Perhaps an individual wants to pass a gift they’re getting to a specific person or organisation. Or perhaps everyone who’s inheriting something agrees that things should be shared out differently. There are some important things to know about deeds of variation:
For the deed to work, everyone affected by the changes has to agree to them.
Any changes you make in the deed of variation will be treated as if the person who died wrote them in their original will.
The person sorting out the will (the executor) may have to give a copy of the deed to the HMRC. So that if the inheritance tax position changes they can charge the right amount of tax on the estate.
If you’re using a deed of variation to give your gift to someone else, you can choose more than one person. So you could leave your share of an estate to your three children.
If you’ve been given a gift that’s shared with other people, you can all agree to change how the gift is shared out. Or, if you’re the only person who wants to make a change, you can only do that with your share.
You’re allowed to give your inheritance to people who are not named in the will.
You’ll need to get two witnesses to sign your deed of variation. They should be ‘competent’ (meaning they understand what they’re signing) and, ideally, they should not be family members, or be mentioned in the will.
Here is a link to a handy HMRC checklist to go through before completing the variation to make sure it meets the legal requirements.
When can a deed of disclaimer or variation be done
You can complete either deeds before or after the executor gets the Grant of Probate. And, for tax reasons, you must make your changes in writing and within two years of your loved one dying.
Otherwise, if you make the changes after two years, you will not benefit from any tax advantages as outlined above.
Some changes to wills are not allowed
A deed of disclaimer or variation cannot be used to:
Remove or change the inheritance of anyone who’s mentioned in the will, unless they agree.
Remove or change any executors or guardians who are named in the will.
Give yourself a bigger share of the estate, unless it’s being given to you by someone else in the will and they agree.
Make any changes to someone’s share if they’re under 18 — that’s because they can’t consent to the deed, unless it's been agreed by the Court.
Make changes in return for payment by someone who’s not mentioned in the will.
Pass a gift of property onto a different person if that’s already been done once before.
If someone in the will changes their name, they should still be able to claim their inheritance
That’s as long as they’re easy to identify and trace. Usually, wills have extra information about each person who’s mentioned, like their date of birth, address, or their relationship to the person who died.
That way, if they ever need to prove who they are, they can show something like their birth certificate or a proof of address. These extra pieces of information can also be really helpful if the person’s name is misspelt in the will.
There are two really important things to think about when making a deed of variation
How your changes will affect the estate as a whole — reducing your share, for example, might mean that others have to pay more inheritance tax.
Whether everyone understands what’s happening and is willing and allowed to agree to it. You won’t be able to use a deed of variation if one of the people who’ll be affected by it doesn’t agree, or isn’t legally allowed to give their consent (if they’re under 18, for example or do not have mental capacity) unless it's by a court order.
You can still change what happens to your loved one’s estate, even if they don’t have a will
If someone dies without a will, then who gets what from their estate is decided by a set of laws called the rules of intestacy.
You can read more about rules of intestacy, but they’re quite rigid and do not always reflect complex family situations, or other relationships the person who died might’ve had.
If the people inheriting under the rules agree they can redirect their share to someone else, they can. This might be because they believe it’s what their loved one would’ve wanted.
Other reasons why someone would want to redirect their share would be similar to those mentioned earlier if there was a will, as well as how they can go about doing it either by deed of disclaimer or variation.
If someone disclaims their inheritance under rules of intestacy
Then they are treated as if they have died before their loved one and their share will be redirected as set out in the rules. Such as if two siblings inherit and one disclaims, if they have children their share would go to their children.
Otherwise, they can choose to complete a deed of variation and have control over who receives their share, so using the same example instead of share passing on to their children they could redirect it to their other siblings instead.
People can also challenge the rules of intestacy if they’re not due to inherit anything or not enough
This usually happens when someone feels like their loved one would have left them something if they had made a will— perhaps a stepchild who was raised by the person who died.
Or if they were partly or wholly dependent on their loved one financially— like a long-term partner who stands to inherit none of the estate under the rules of intestacy but relied on their loved one’s finances .
In cases like these, if there is no agreement they can look to make a claim using the 1975 Inheritance (Provision for Family and Dependants) Act. But they must usually do it within six months of the ‘Letters of Administration’ being granted — that’s the document which gives the person named on it the authority to handle the estate administration.
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