Deed of Variation 20 June 2022 at 10:23PM in Deaths, funerals & probate 12 replies 791 views

ACT1

Bit of background - My parents had mirror wills where they left their estate to each other and if both died to the 4 children. My mum died first and left her estate to dad. Dad then made a new will leaving the house to one sister and the residue to all 4 children. My sister didn't want this change and wanted/wants it left to all 4 children.
We were looking at doing a Deed of Variation, asked the solicitor when we picked up the will, they said we needed probate first but looking online it says you don't have to have probate?
I have been looking at this form https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/373615/IOV2.pdf and am wondering whether we need to get a solicitor to draw up a deed or my sister can do it herself?
There will be IHT to pay but it wont make a difference there as the house would be left to the my sister anyway but presumably would make a difference to CGT as the house will ultimately be sold.
Any thoughts would be appreciated.

Keep_pedalling

There is no hurry to the DoV it just has to be done within 2 years of the death, but I don’t see why you have to wait until probate has been obtained before it is done. You also don’t need a solicitor to draw up a DOV.

Have you taken into account both NRB and residential NRBs in your assumption that IHT will need to be paid?

ACT1

Thanks for your reply.
I have taken  the NRBs into account. I am assuming there won't be 175k from my mum as the house was in my dad's name only?
We were thinking it might be an idea to do the DOV sooner rather than later as being a cheerful bunch what happens if my sister dies before dad's estate is settled?

bobster2

ACT1 said:

Thanks for your reply.
I have taken  the NRBs into account. I am assuming there won't be 175k from my mum as the house was in my dad's name only?

Your assumption may not be correct.

See here...

https://www.weightmans.com/insights/how-to-handle-the-residence-nil-rate-band/

Any unused portion of the RNRB is transferable to the surviving spouse in the same way as the NRB (IHTA 1984 s 8A). This occurs where the first deceased spouse did not have a QRI on their death, or where a QRI was not left to lineal descendants. As such, the transferable RNRB can be claimed even if the first to die did not have any property. The transfer of the RNRB must be claimed and is only available on death and cannot be claimed for lifetime transfers.

Keep_pedalling

ACT1 said:

Thanks for your reply.
I have taken  the NRBs into account. I am assuming there won't be 175k from my mum as the house was in my dad's name only?
We were thinking it might be an idea to do the DOV sooner rather than later as being a cheerful bunch what happens if my sister dies before dad's estate is settled?

Thankfully your assumption is wrong. Even if your mother had died before the RNRB was introduced or your father only bought a house after she died her allowance is still available to transfer. The important thing is that for whatever reason her allowance was not used so it can be transferred. 

Have you chosen to use a solicitor or did his will appoint one? 

ACT1

I did the probate for my mum on dad's behalf so I know the allowance wasn't used. She died in 2016, from what I can make out the allowance would be 100k, will have a better look later. I am the executor for dad's will and had financial POA since 2017 so I have been able to get the figures I need for the forms. My intention is to fill the forms in and then get a specialist to check them over before submitting.

Keep_pedalling

ACT1 said:

I did the probate for my mum on dad's behalf so I know the allowance wasn't used. She died in 2016, from what I can make out the allowance would be 100k, will have a better look later. I am the executor for dad's will and had financial POA since 2017 so I have been able to get the figures I need for the forms. My intention is to fill the forms in and then get a specialist to check them over before submitting.

You will be able to claim the full £175k RNRB allowance (provided the house the allowance is being used against is worth at least £350k) as it is the date of your father’s death that counts for transferred allowances.

SevenOfNine

Some advice/checklist on the government website  https://www.gov.uk/alter-a-will-after-a-death

According to Saga it can be done "before or after".  https://www.saga.co.uk/magazine/money/personal-finance/inheritance/deed-of-variation-changing-a-will-after-death

Personally, we used a solicitor. As £143k was being 'diverted' we considered it could be false economy to DiY, wanted to be confident all the correct terminology was used, but each to their own choice!

Frogletina

Keep_pedalling said:

ACT1 said:

I did the probate for my mum on dad's behalf so I know the allowance wasn't used. She died in 2016, from what I can make out the allowance would be 100k, will have a better look later. I am the executor for dad's will and had financial POA since 2017 so I have been able to get the figures I need for the forms. My intention is to fill the forms in and then get a specialist to check them over before submitting.

You will be able to claim the full £175k RNRB allowance (provided the house the allowance is being used against is worth at least £35k) as it is the date of your father’s death that counts for transferred allowances.

House needs to be worth £350k to be able to use 2 × £175k

Keep_pedalling

Frogletina said:

Keep_pedalling said:

ACT1 said:

I did the probate for my mum on dad's behalf so I know the allowance wasn't used. She died in 2016, from what I can make out the allowance would be 100k, will have a better look later. I am the executor for dad's will and had financial POA since 2017 so I have been able to get the figures I need for the forms. My intention is to fill the forms in and then get a specialist to check them over before submitting.

You will be able to claim the full £175k RNRB allowance (provided the house the allowance is being used against is worth at least £35k) as it is the date of your father’s death that counts for transferred allowances.

House needs to be worth £350k to be able to use 2 × £175k

Sorry! typo missed off a zero. Now corrected.

dresdendave

As a separate issue from the OP's actual question, could there be DOA issues for the sister if in the near future she needs means tested benefits, care or suchlike?