Can an Executor Change a Will?
When a person passes away, you may wonder what happens to their estate.
Who handles the distribution of the estate assets?
Who makes sure the beneficiaries get their rightful inheritance?
If the deceased had debts, do they magically disappear into the afterlife? (Spoiler alert: It doesn't.)
They can't really manage their affairs from beyond the grave... or can they?
Actually they could, and here is where the executor comes in.
If your deceased relative left a Will, you might have even been named executor. Or the probate court may have tasked you with the responsibility.
In any case, being an executor is not easy, and it would require you to put aside your grief in order to settle the affairs of the deceased and do right by the beneficiaries, the creditors, and ultimately, the Will of the deceased person themselves.
What Happens When a Person Dies?
When a person dies, everything they have accumulated in this lifetime becomes part of their estate. This includes liquid assets such as bank accounts, stocks, bonds; other assets such as real property, vehicles, collections of luxury items such as bags, watches, and artwork; and personal items such as jewelry and clothing.
Regardless whether the person dies with or without a will, all of the estate's assets will have to go through probate.
If there is an estate plan, such as a living trust or a last will and testament, it can vastly simplify things but it doesn't mean probate is unnecessary.
What Is Probate and Why Is It Necessary?
Probate is a legal process to distribute estate assets and ensure that they go to their intended beneficiaries which includes not only heirs, but creditors as well.
What Is the Role of the Probate Court?
The probate process is supervised by the local court where the decedent resided, which then acts as the probate court. Their involvement ensures that fraud is prevented and the beneficiaries get what is due them.
How Does the Probate Process Go?
Generally, these things happen during the probate process:
- The Will is located, filed in court, and validated.
- The court formally appoints the executor as named in the last will to oversee the administration process.
- All the estate assets are located and appraised. The same goes for liabilities such as mortgage payments and unpaid taxes. To clear these liabilities, some inheritance assets may have to be sold off if there isn't enough liquidity.
- Afterwards, the executor will distribute assets according to the terms of the will or the probate code before formally concluding the probate proceedings.
What Is An Executor?
Also known as a personal representative, an executor is the person responsible for the administration of a deceased person's estate. They are named in the will, or if there is no will, the court orders the decedent's spouse or a responsible child to act as the executor.
What Are the Duties of an Executor?
Executors have control, but not ownership, over the estate.
Executor responsibilities include, but are not limited to, the following:
- filing the will, the death certificate, and the petition to start probate in the local court;
- notifying interested parties such as financial institutions, previous employers, the IRS, creditors, and beneficiaries regarding the death;
- tracking down, arranging an appraisal, and keeping an inventory of the estate's assets;
- paying debts and taxes;
- maintaining proper bookkeeping of all expenses related to estate administration;
- selling estate property if needed, to cover said debts;
- maintaining and upkeep of real property;
- distributing assets to beneficiaries;
- for large estates, hiring a probate lawyer to seek legal counsel in order to iron out kinks in the process; and,
- filing the necessary paperwork to close the probate once everything has been dealt with.
Executors are tasked with executing the wishes of the departed loved one as outlined in the last will. As they have the final say regarding major financial decisions concerning the estate, they must always act in good faith.
And while it is not uncommon for an executor to also be a beneficiary, this doesn't mean that they have a license to act in ways that would only benefit them.
Executors have a fiduciary duty to work in the best interests of the estate and the estate beneficiaries. They can be subject to legal action if they are remiss in these fiduciary duties.
What Are Some of the Things That an Executor Cannot Do?
Although an executor has a wide latitude regarding how they carry out their duties, there are limits to it as dictated by the law.
Executors are mainly forbidden from:
- signing the Will on the testator's behalf if it was left unsigned;
- distributing the estate assets before the testator has passed;
- replacing the listed beneficiaries with other people; and,
- stopping the beneficiaries from contesting the Will.
Additionally, trying to do any of the following constitutes a breach of fiduciary duty and an executor may be opening themselves up for legal action:
- even if the personal representative is a family member and a beneficiary, they cannot try to get a larger inheritance by disenfranchising another beneficiary;
- in case of ambiguities in the Will, executors cannot provide their own interpretation and perform based on that. In such a case, they are legally required to consult an estate lawyer to clarify matters or petition the probate court for guidance;
- when selling property to clear liabilities, an executor cannot sell assets for way below their fair market value, hence an appraisal is almost always necessary;
- they cannot sell estate property to themselves, otherwise known as self-dealing;
- in settling estates, an executor might run into a couple of beneficiaries that are difficult to deal with. Be that as it may, an executor cannot threaten to strike them off the will;
- executors cannot be careless with the assets they are administering such as letting a property fall into disrepair or allowing them to disappear;
- executors cannot distribute estate assets without first paying off creditors and taxes.
The court can remove an executor and appoint a new personal representative if they are found to have breached their fiduciary duty to the estate.
So, Can an Executor Change What Is Written in the Last Will?
The short answer is no.
Under no circumstances can an executor change what is written in the Will.
To be faithful to their duties, they are legally required to implement whatever is contained in the Will. The only exception is when doing so is impossible, such as when a property has been sold off in payment for a debt.
However, there is a special instrument that can be used by the executor, together with the beneficiaries, to alter the contents of the will and adjust inheritance distribution even after the testator has died.
This can be done through a deed of variation.
What Is a Deed of Variation?
This legal document, also known as a deed of family arrangement, allows changes to be made regarding a beneficiary's entitlement from a Will.
For example, if they wish to redistribute their entitlement to another sibling so they'd get a larger inheritance. Do note that changes can only be made on a specific beneficiary's inheritance--it cannot interfere with the entitlement of other beneficiaries, unless they are on board with the decision and have given their explicit consent.
If you'd like to know more regarding this matter, consult with an estate planning attorney.
Frequently Asked Questions: The Will, the Executor, and the Estate Beneficiaries
Should an Executor Pay Debts Owed By the Estate Before Distributing the Assets?
As an executor, keep in mind that debts before heirs. Once all the lenders have been paid off, anything left over from the estate can be distributed to the rightful beneficiaries.
Can an Executor Override a Beneficiary?
Yes, the executor can override a beneficiary as long as they are acting in accordance with what is written on the Will.
Can Beneficiaries File a Contest Petition Regarding the Distribution of Estate Assets?
There are times that a beneficiary disagrees with what is written on the will. They might be sad, maybe a little angry, and they may take it up a notch and start a trust litigation.
If this is the case, you must be prepared.
Disputes surrounding the estate can be tense and emotionally charged, so as an executor, you must keep a level head and seek the advice of a probate attorney.
But first, determining whether the beneficiaries have the ability to contest a Will and proceed to estate litigation comes down to two factors: standing and grounds.
Standing
If a beneficiary feels that they would have more to gain if the Will were to be set aside and just follow the rules of intestate succession, then it means they have standing, or a financial stake in the outcome.
Grounds
If the beneficiaries feel that the testator is no longer of sound mind while writing their will, they can contest the will in court.
Other valid grounds for a contesting a will include: undue influence, elder abuse, fraud, forgery, and lack of due execution.
Can an Executor Override the Will?
Yes. This commonly happens if some properties have to be sold off to cover liabilities, making it be impossible for an executor to follow the Will.
Closing Thoughts: Is It Possible for an Executor to Change a Will?
Yes, it is entirely possible and legal for an executor to change a Will, as long as it is within the bounds of the law and in agreement with the beneficiaries.
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