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Deed of Variation when a Beneficiary has Died

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  • Deed of Variation when a Beneficiary has Died

    My father died earlier last year leaving his estate (inc a property) to myself and my brother. We have gone through probate. Unfortunately my brother has also died before we could sell the property which is currently on the market.
    My brother leaves his estate equally between his four children.

    Is it possible for us to create a 'Deed of Variation' of my father's will to leave half my father's estate directly to the four grandchildren/brother's children? This makes the property sale process a lot easier.
    My concern is that as my brother has died he cannot sign the deed (as a beneficiary from my father's will) but we hoped that my brother's executors (two of his children who are also beneficiaries) can do this but unsure.

    Any guidance would be appreciated. Thanks!
    Note: No IHT/CGT involved
    Tags: None

  • #2
    Hi Schilly,

    I'm sorry to hear about your father and your brother. Must be really tough for you all.

    Was your brother an executor of your father's Will and therefore named on the Grant of Probate? Did he die within 28 days of your father and if so is there a clause in the Will confirming a beneficiary would only take their legacy if they survived more than 28 days? If this is applicable is there a substitute in the Will to take your brother's share, something along the lines - 'Save That if either predecease me to pay their share equally to those of their children who survive me.'

    The issue you have is the fact that the Deed of Variation would have to be signed by your brother as the beneficiary who is affected (and yourself) which of course is not possible any longer.

    The property sale process should not be more onerous to be honest. Your brother's share will go to his estate so basically the proceeds of sale due to him would be passed to his executors to be distributed according to his Will. Have the children obtained probate for him yet or are they in the process of doing so?

    I am a qualified solicitor and am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

    Comment


    • #3
      Thank you for your reply.
      Yes my brother was an executor and is named on my father's Grant of Probate. My brother did not die within 28 days of my father who died last year.

      My father's will originally named by mother but if deceased (which she did in 2010) my brother and I would become executors. Am struggling to understand this part of my father's will which is what you may be referring to:

      'MY TRUSTEES shall hold my residuary estate UPON TRUST for such of my children as shall be living at my death and if more than one in equal shares absolutely Provided Always that if any child of mine shall die without having attained a vested interest hereunder leaving a child or children living at my death then any such child or children (meaning in either case a grandchild or grandchildren of mine) as shall attain the age of twenty-one years shall take by substitution and in equal shares if more than one per stirpes the share of my residuary estate which such deceased child of mine would have taken had he or she survived and attained a vested interest.'

      (Or does this mean there is no need for a variation and myself, as the surviving executor of my fathers will, can distribute amongst the grandchildren as per my fathers requests in his will)?

      My brother died recently and probate hasn't been completed. This is why we thought that a Deed of Variation may be an option to that process as without the proceeds from selling my father's house it would not be necessary. As the house is on the market and we expect a relatively quick sale a Deed of Variation would mean no hold ups and a lot less grief for the family.

      (All grandchildren are over 21)

      Many Thanks for your assistance.

      Comment


      • #4
        Hi again,

        Technically, as your brother died after your father the residue should still be divided between you and your brother (under the terms of his Will or intestacy). If your brother had died before your father then his half share would be divided equally between his children and you would receive the other half share of your father's residue.

        As your father had appointed both you and your brother as executors and he has died after the Grant of Probate was obtained, you are able to carry on with the administration. The conveyancing solicitors will probably need an official copy of the Death Certificate for your brother, together with the Grant of Probate for your father but it shouldn't cause any delay. The proceeds are sent to the executor of your father's estate to be distributed as per his Will.

        So once all other debts, testamentary & funeral expenses of your father's have been settled together with any specific legacies he made in his Will, whatever is left is the residue. You then deal with the residue as per your father's Will so you retain half and the other half goes to your brother's executors to deal with under his Will or under the intestacy rules if he didn't have a Will. There should be no delay caused by this unfortunate situation as you can carry on dealing with the administration of the estate.

        A Deed of Variation won't assist as to be legally recognised your brother would have to have signed I'm afraid.

        Hopefully that clarifies things but do pop back if you need any more pointers.
        I am a qualified solicitor and am happy to try and assist informally, where needed.

        Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

        If in doubt you should always seek professional face to face legal advice.

        Comment


        • #5
          Can't thank you enough for your help.
          Sorry but just to clarify:
          With the appropriate documents I can continue to administer my father's estate inc. sale of the house with no delay.
          On sale of the house I can retain 50% and hold 50% until probate is completed for my brother (as the proceeds of the house would mean this would be required).
          I can then distribute the remainder via my brother's executors.
          If I am reading you correctly I can continue with my father's estate as the sole surviving executor, but my brother's estate would still require probate before I can distribute the other half of my father's estate.
          This clarification would clear the matter up for me finally.
          Very grateful....
          Last edited by Schilly; 5th February 2019, 18:57:PM.

          Comment


          • #6
            Hi Schilly,

            You don't have to hold your brother's 50% that is paid directly to his executors. You don't have to wait for them to obtain probate. It is up to them to distribute your brother's estate. If needs his executors can also sign any conveyancing documents needed.

            Provided your brother had a Will the executor's power to act comes from the Will so they can start dealing with the estate before they have the Grant. If he had no Will then a Grant of Letters of Administration (same as Probate but where no Will) is needed as the administrators powers come to them via the Grant.

            Your brother's executors (or Administrators) are responsible for distributing his estate (which will include his half share of your father's property) You do not need to be involved in that distribution just handing his share from father's estate to his execs/admins.

            Did your brother have a Will? Does his estate actually need a Grant to be obtained. Whether a Grant is needed will depend on what his estate consists of, does he own property that is to be sold or transferred to someone other than a joint owner, the value of his estate and whether inheritance tax is due.

            I am a qualified solicitor and am happy to try and assist informally, where needed.

            Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

            If in doubt you should always seek professional face to face legal advice.

            Comment


            • #7
              Thanks very much again
              Most of what you said makes it clear for me.
              My brother did leave a will with his estate being divided between his four children. I understand that I can continue with the sale of the house and half the proceeds going to my brother's executors.

              The main clarification is that if proceeds went directly from the sale of my father's house to his grandchildren, would it be the case that they become the beneficiaries rather than my brother?

              The reason this is important is that if my brother is the beneficiary they will be required to go through probate for my brother. If it goes directly to the grandchildren the estate would be 'small' and not require probate (just a declaration) as other assets would not meet the threshold. This would make their life a lot easier if it can be avoided. It is only this point in the process I don't quite understand.

              Comment


              • #8
                Hi,
                Probably not what they want to hear but it would be necessary for them to get probate in that case. Technically as executor of your father's estate you can only distribute as per the Will so in this case to your brother's estate. It is for his executors to then deal with the estate of the brother. They can apply for probate now indicating an approximate amount that will be coming by way of inheritance. A corrective account can then be made to HMRC if an over or underpayment of inheritance tax is made.

                It may be worth them double checking joint assets and ready reckoning the estate value. Remember the amount due to your brother won't be 1/2 the value it is sold at as estate agent fees, solicitor fees etc will be deducted first. Sure you've taken account of that but if not it may affect whether they need to obtain probate.
                I am a qualified solicitor and am happy to try and assist informally, where needed.

                Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

                If in doubt you should always seek professional face to face legal advice.

                Comment


                • #9
                  Thank you. You have been really helpful. That is what I suspected but just wanted to make absolutely sure. His children would have preferred if it could have been avoided but that is not to be. All a bit daunting for them at the moment. The main thing is that the sale of my father's house can continue without any delay waiting for my brother's probate. That is at least one worry out of the way as it would everything much more difficult.
                  It's been a pleasure & thank you again.

                  Comment

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