Deed of Variation (where there is no valid Will).
A deed of variation of intestacy can be incredibly useful where someone dies without a valid Last Will and Testament. This is known as dying “intestate.” In England and Wales, the consequences of dying without a valid Last Will can be disastrous. Most especially for unmarried couples where neither has an automatic right to inherit from the other. It can – and does – end up with surviving parents having to sue their own children under the Inheritance Act. (Cost.)
Even with married or civil registered couples, the surviving partner only inherits a proportion of the deceased persons’ estate. This can be very unfortunate where the home is valuable (depending on how it is owned.) If the home is worth more than £250,000 depending on the circumstances it might even have to be sold to pay children what they are due. Unless, as mentioned above, the surviving parent takes the children to Court.
How does a deed of variation of Intestacy help?
There are serious issues if any of the children are under 18. But if we assume that they are over 18 and happy to help their mother or father, then a Deed of Variation of the intestacy can be agreed. This effectively means that the beneficiaries can agree to write a Last Will for the person who has died – afterwards! Everyone who is giving anything up has to agree, and if any of them are under 18 or lacking mental capacity, things are more complicated.
Cost of a Deed of Variation of Intestacy.
When must the deed of variation of intestacy be completed?
To be effective for tax purposes, the deed of variation of intestacy must be fully completed within 2 years. But leaving it until the last minute is dangerous. However, if the deed of variation is completed later and one of the children is married or in a relationship or has potential creditors, there could be all sorts of expensive complications. So it is always the sooner the better, and ideally during the probate process, which we can help with.
Deed of Variation of Intestacy with beneficiaries under 18.
The problem with children under 18 (or anyone not of sound mind) is that they are legally unable to agree to a Deed of Variation of intestacy (or deed of family arrangement as it is also known). In effect, the Courts would have to approve the Deed of Variation on their behalf so the process would become much more expensive. The Judge may not agree to allow the deed of variation if he or she feels that it is not to the advantage of underaged children or folk who may not be able to manage their own affairs.
Main Deed of Variation page.