Deed of Variation - Grant needed

Dear Members,

I am just looking for a definitive answer in whether a deed of variation remains effective if a grant is never obtained by the executors? There is a valid Will, but a grant is not necessary to attend to the administration of the estate. Most references indicate that the deed can be created pre-grant but the deed should make reference to the fact that a grant will be obtained and to name the probate registry to which the application will be sent. Is it sufficient to make a statement that a grant is not needed and thus the Executors have chosen to dispense with this. The Executor (spouse of the deceased) is redirecting half share in the matrimonial home to a PPT and I believe, it is fine for him to execute the deed alone or would it be prudent to have the Trustees of the PPT also sign?

Any thoughts welcome.

A variation effective under s.142 IHTA 1984 (and s.62(6) TCGA 1992) may be made only by the beneficiary and, provided that it does not give rise to any additional IHT charge, there is no requirement for the PRs to be party. In any event, there is no requirement for those who benefit under the variation to be party (unless there are onerous conditions attached to the gift under the variation).

Whilst there is no statutory requirement for a grant to be issued in order for a variation to be effective, I would question the wisdom of administering the estate without a grant – you might refer to my article from last December on the LawSkills website: Probate, or any other grant – Why Bother? - Lawskills to understand my reasoning on this.

Additionally, as the trust will need to be registered on TRS, the lack of a grant might cause issues with registering (perhaps others who deal regularly with TRS might comment if this is a real or just a perceived issue).

If the property was held by the executor and the deceased as joint tenants, and so passed by survivorship outside of the terms of the will, there would be no need for a grant to deal with the property in any event, and so should not affect either the effectiveness of the variation, nor registration on TRS.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals