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Deed of Variation / Joint Accounts

My dad died last November and I've found the various threads and comments on this forum very useful, so thanks!

He died interstate and we've had a solicitors letter outlining what me and my brother are due under the laws of intestacy. Me, him and my mum are still around and the only beneficiaries. My dad had a 2nd house in his sole name which my brother would like (£162,500 is a real valuation) and has suggested I receive the same amount in cash and we if we all agree, which we all do, we can get a Deed of Variation drawn up to reflect that.

Looking at the estate, I can see that to get £162,500 in cash would involve money that was held in a joint account he had with my mother, so am I correct in assuming the amount in there cannot be redistributed in a DoV in that under survivorship its not part of my late fathers estate any more (even though he contributed 100% of the amount in there) so even if we all agreed we couldn't do it that way?

If so, would that then make the only option to make a deed of variation for the amount he had under his sole name then make a deed of gift (so 7-year rule) for the remainder from my mother?

Thanks for any help!

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Comments

  • Keep_pedalling
    Keep_pedalling Posts: 23,558
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    You are correct about the joint account it is not part of his heritable estate so it is now your mother’s outright. (I am assuming this is not a Scottish estate here, if it is things are somewhat different)

    In any case a deed of variation is a very bad idea when the variation takes an inheritance from a spouse to someone else because anything left to a spouse is covered by spousal exemption so it is better for the surviving spouse to gift an inheritance away rather than make a DoV.

    What is the total value of his heritable estate? If less than £322k then it all goes to his spouse.

  • MyRealNameToo
    MyRealNameToo Posts: 5,378
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    You say "your mum" but was she his wife at the point of death? Im guessing she was but it's a bit of an assumption with significant impacts if it's not true.

    Money in a joint account is fully owned by both parties so when your father died it became purely her money and is not part of the estate. Doesnt matter who paid the money in, the second it went into they both owned it 100%. She could choose to give one of you some or all of it but that wouldnt be from the estate and could have implications if she dies within 7 years.

  • Osh3may
    Osh3may Posts: 62
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    We are based in North Wales.

    Heritable assets are 2 houses in sole name and about 100k in cash in his sole name. Solicitor reckons under intestacy me and my brother are to split £151k between us (estate approx 625k). I think the reason for the deed would be to take money out of my mothers estate and to circumvent the 7 year rule for gifting. If the house is valued at £162,500 and I get the same amount in cash that's the £325k NRB for IHT.

  • Osh3may
    Osh3may Posts: 62
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    Yes they were legally married and living in the same house at the time he died.

    So it looks like a DoV signed by all of us that my brother inherits the house and I receive all the cash in his sole name (100k) then a separate deed of gift for the remaining £62,500 (which is subject to the 7 year rule) from my mum is probably the best way to go about it.

  • Osh3may
    Osh3may Posts: 62
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    Thanks for the reply!

    So my mother would be better off just gifting the house and cash as even if she died within the next 7 years it wouldnt matter if the estate was under 1m so covered by all the bands (NRB and RNRB added together for her and my dad which we wouldnt have used)

    So the £151k we were due under intestacy, is that just disregarded in preference of the gift? Just make a note of it somewhere in amongst our documents?

  • Keep_pedalling
    Keep_pedalling Posts: 23,558
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    In the simplified example I gave the full £1M would be available but the £151k that goes to you and your sibling reduces the transferable NRB by that amount so you mother’s estate will have a total exemption of £849k which is still better than £650k

  • Osh3may
    Osh3may Posts: 62
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    Makes sense, thanks!

    It appears it was our solicitor who was keen on doing the DoV, but as you point out gifting would be the most sensible option. A gift would probably fall out of the estate (of my mum) as a PET whereas a DoV would definitely used up 325k of the potential 1m threshold.

    IF it came to deprivation of assets I dont think theres much difference between a DoV and a Gift, so there isn't anything to gain there either.

    From a quick google it looks like you need a legal 'Deed of Gift' for property, whereas a monetary gift just needs a detailed note with all the details on. Does that sound about right?

  • poseidon1
    poseidon1 Posts: 3,783
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    I suspect a deed of gift will be a necessary prelude to the TR1 land register transfer from father's intestate estate to your brother.

    Since the property does not automatically accrue to your mother by intestacy , you will need a bridging document after probate to show she elects to recieve it as part of her statutory £322k legacy (plus half the remaining assets) in order to personally gift the property on to your brother.

  • Osh3may
    Osh3may Posts: 62
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    Thanks for that. First I've heard of a bridging document, what's the process for getting one of those?

    The property is unregistered. Does that make it easier of harder?! So the first registration with LR would be my brother, we have the physical deeds in my dads name from 1972 when they bought it.

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