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HMRC internal manual

Capital Gains Manual

From:
HM Revenue & Customs
Published:
12 March 2016
Updated:
31 July 2026 - See all updates

CG31400 - Death and personal representatives: variation of the devolution of an estate: outline

Introduction

When a person dies, in most cases it is the will which provides what is to happen to his or her assets after the estate's liabilities have been dealt with. This will provide that

  • specific assets, interests in assets or sums of money are to pass to certain legatees

and

  • the remaining assets forming the residue of the estate are to pass to certain persons in various proportions,

in either case absolutely or as trustees on behalf of beneficiaries.

If there is no will, or the will is invalid, or it fails to dispose of the whole of the deceased’s estate, then the property passes in accordance with the statutory rules for intestacy.

For the reasons discussed in CG30270 and 30280 it may be desirable or may become necessary to vary the devolution of the estate from the arrangements provided for at the date of death.


Methods of varying devolution

The devolution of the estate may be varied in a number of ways. 

DEEDS OF APPOINTMENT

  • If a will directs that after completion of the administration period, some or all of the assets of the estate are to be held on trust and that trust contains powers enabling the trustees to appoint assets out of the trust, a deed of appointment may be executed so that those assets pass direct to the appointee on vesting rather than entering the trust.

DEEDS OF DISCLAIMER

  • If a legatee wishes to give up his or her entitlement to assets of the estate without directing how those assets should be dealt with thereafter, a deed of disclaimer may be executed.

INSTRUMENTS OF VARIATION

  • If a legatee wishes to give up his or her entitlement to certain assets of the estate but wishes to direct to whom those assets should devolve in place of that legatee, a deed or other instrument of variation may be executed.

COURT ORDER

  • If court proceedings have been commenced-
  • a court may in certain circumstances order a variation of the devolution

or

  • the parties may reach a compromise and the court will order that the proceedings be stayed or dismissed on the terms that the assets will devolve in accordance with the agreed compromise.

DISPOSAL OF LEGATEE'S INTEREST

  • The legatee may decide to sell his or her expectation of receiving assets from the estate or to give that expectation to some other person without executing a deed of disclaimer or variation.

The Capital Gains Tax effects flowing from the variations arising under these different forms of variation are dealt with in the following paragraphs


Reference to a specialist office

If it becomes necessary to seek further guidance about a point of doubt or difficulty concerning the variation of the devolution of an estate please follow the rest of this paragraph.

  • You will need to obtain


  • a copy of the will and probate
and
  • a copy of the relevant deed or instrument of appointment, disclaimer or variation.
  • If you are asking for guidance from HMRC Trusts and Estates (but not IHT) please follow the guidance in TSEM on seeking technical help. 
  • If you are asking for guidance from Capital Gains Technical Group or HMRC – Trusts and Estates IHT follow the guidance which is accessible on the Intranet version of the CG manual by clicking <Technical Help> in the left hand margin.