Can you decline a legacy: Is there an advantage to saying no?

In some cases, there may be an advantage to refusing a gift left to you in a Will. We explain about refusing inheritance and the benefits and how to go about it.

If you are left a gift in someone’s Will, you do not have to accept it, if you do not want to. Circumstances may have changed since the Will was made and you would now prefer that the money or asset is passed to someone else.

Importantly, there might be tax advantages to a gift going elsewhere. For example, Inheritance Tax is payable on the money that you are to receive but you ultimately wish to pass it on to your children. In which case Inheritance Tax would be payable again when it is left to them. By not receiving the money yourself and passing it straight to your children, Inheritance Tax is payable only once.

There are two options if you do not want to receive a gift left to you in a Will:

  • Disclaim the inheritance
  • Arrange for a deed of variation changing the terms of the Will
Disclaiming an inheritance

If you simply do not want to receive a gift you have been left, advise the estate’s executors that you are disclaiming it. If you have been left several different gifts, you can decide to keep some but disclaim others. You cannot disclaim part of a gift however. For example, if you have been left a painting and £15,000, you can have the money and refuse the painting. You cannot decide to have half of the money.

Any gift that is disclaimed will be distributed in accordance with the Will. If the deceased did not make a Will, then the gift passes under the Rules of Intestacy.

It is recommended that the decision to disclaim a gift is put in writing, although this is not a legal requirement. Notably, this should be done within two years of the date of death.

Deed of variation

It is more common to use a deed of variation if you do not want to receive a legacy. This gives you the opportunity to pass it on to your choice of beneficiary.

Unlike disclaiming, you can vary the Will so that part of a gift goes to someone else. You can only make changes that affect your gift and not anything left to another beneficiary.

Again, this should be done within two years of the date of death. The deed of variation must be in writing and executed and witnessed as a deed.

It is preferable to use a deed of variation rather than to inherit a gift and give it to your choice of beneficiary as there may be Inheritance Tax implications in doing so. In some cases, it could mean that Inheritance Tax is payable twice on the value of the gift.

Always seek legal advice before disclaiming an inheritance or signing a deed of variation. There can be serious implications. For example, if you were later unable to pay your care home fees, the local authority could take action to recover the legacy on the basis of deliberate deprivation of assets.

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