In short, the answer is that you can change a Will after someone dies.
This is, of course, subject to a number of conditions being met, but it is possible (and legal) to change the distribution of a person's estate after their death regardless of whether or not there is a Will in place. The legal process is relatively simple and usually straightforward. The change is recorded in a document known as a "Deed of Variation" (sometimes referred to as a "Deed of Family Arrangement").
Why would you want to change a Will?
There are several reasons why a beneficiary or beneficiaries may wish to rearrange or redirect their inheritance:
- to take advantage of available inheritance tax reliefs
- to take advantage of the reduced rate of inheritance tax (36%) if a certain amount is left to charity
- the Will was not up to date and did not include a family member
- the distribution of the estate is not equal among beneficiaries
- to set up a trust for a beneficiary from which they can benefit
- to bypass a generation to assist with the intended beneficiary's tax planning
What if there isn't a Will?
When a person dies without making a Will, known as "intestacy", this can lead to unexpected consequences. A Deed of Variation can be used to change the distribution of the estate to create a fairer outcome.
This can be helpful where the deceased was survived by a long-term partner. Under Scots law, cohabiting partners have no automatic right to inherit from a deceased partner's estate.
What changes can be made?
A beneficiary can change their inheritance and redirect all or some of it as they wish. This can include leaving specific assets or a legacy to someone or several people, redirecting all of their inheritance or setting up a trust.
A Deed of Variation can be made in relation to assets abroad or if the deceased lived abroad.
A Deed of Variation does not allow a beneficiary to change other beneficiaries' inheritance without their consent. It also does not allow a beneficiary to change the executors or guardians named in a Will.
How can you a make a Deed of Variation?
A Deed of Variation must be made within two years of a person's death. It must be in writing, it must be signed by the beneficiary giving up their inheritance and it must clearly state how the distribution of the deceased person's estate is to be distributed and who is going to benefit.
Who can inherit from a Deed of Variation?
Any individual, organisation, company or charity can benefit.
A Deed of Variation provides a unique opportunity to create a fairer outcome for a family or make a potentially significant tax saving.
We're here to help
Should you wish to discuss making changes to a Will, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:
Elgin: 01343 542623
We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland - and working from home, ready to help in person or over the phone or on a zoom call.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.