Intestacy and deed of variation

[Rachel1963]

Hello, I'd be very grateful if someone could advise on this.

My father died a couple of months ago, without leaving a will. This means that my mother is seen as his next of kin although they separated (amicably) about 30 years ago - they just never got round to getting divorced. Mum has now received the Letters of Administration and she feels very strongly that Dad's estate should come to my brother and me - he always said he would make a will and leave his estate to us but didn't get round to it, thought he was immortal!

I know you need a Deed of Variation to vary a will but do you need the same in this case, where there isn't a will. And, if so, does it have to be done through a solicitor or is there a simple way of doing it oneself? Dad's estate is very simple, no property, just cash and totalling less than £100K. Mum's had a quote from a solicitor of £175 per hour but without any indication of how many hours might be involved and she's concerned about the costs racking up.

Mum is also quite worried about what happens if she dies within seven years - her estate will attract inheritance tax, so would the value of Dad's estate be added to hers even if she's transferred it and thereby be liable to tax (which of course, it wouldn't have been if he'd made a will....)

Hope this makes sense - would really appreciate a steer if only to put my mum's mind at rest!

[mumblechum1]

Your mum can enter into a deed of variation notwithstanding that there isn't a will. It would be sensible to have it drawn up professionally. The solicitor should have given a proper estimate of costs; I'd estimate 2 to 3 hours work, as they'll need to liaise with the beneficiaries as well as your mum and look into the assets etc.

I'd suggest she gets back in touch to get a firm estimate. It may cost £600 plus VAT or so but it would be worth it to have it done properly, and it would only be 0.6% of the value of the estate.

[emsyj]

You can vary an intestacy in the same way as you can a will, as mumblechum says - if your mum varies so that she doesn't get anything from the estate, it will be treated for IHT purposes as though your dad made the gifts to you and will not form part of her estate for IHT.

If your mum's estate is already likely to attract IHT then it will be cheaper to vary than to pay the tax (assuming current rates and rules continue, of course). Bear in mind that you can now transfer an unused nil rate band between spouses, so your mum's executors could claim any unused part of your dad' IHT nil rate band amount on her death (increasing the amount she can leave tax-free).

Hope that makes sense!

[mumblechum1]

Couldn't have put it better myself emsyj

[emsyj]

You're too kind mumblechum -

[Rachel1963]

Thank you so much mumblechum and emsyj. I'm seeing mum for lunch and a large glass of wine today so will print off this thread and put her mind at rest.