Whether you’re an executor who wants to know what they can and cannot do, or you’re a beneficiary who is concerned about the executor’s rights, you want to know, “Can an executor change a will?”
That’s what we’re aiming to answer, today. That said, this doesn’t replace legal advice and is for informational purposes only. We always encourage you to seek legal advice regarding the specifics of your situation.
The short answer is, no, an executor cannot change a will. Being an executor over someone’s will comes with a lot of responsibility. There are certain things an executor can and cannot do. Let’s take a closer look at the executor’s rights and responsibilities.
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What the Executor Can Do
The executor is responsible for managing the probate process. This means they will interact with the county probate court and make decisions about how to handle probate assets.
- Open probate with the local court
- Identify the deceased’s assets
- Notify heirs and interested parties of the deceased’s passing
- Administer the estate
- Pay the deceased’s outstanding debts from the estate. In many states, they can sell assets (as long as they do so for at least fair market value) without getting all beneficiaries to approve. But the beneficiaries must be notified of the sale. The proceeds from the sale can pay off debts, with the rest going into the inheritance to be distributed accordingly.
- Distribute the estate assets to heirs and beneficiaries
- Close the estate
Managing these duties means that the will’s executor makes a lot of decisions and has the final say on a lot of things. They are managing the deceased’s estate until the estate’s assets pass to the beneficiaries. Ultimately, the executor carries out the deceased’s wishes, according to the will, but there are limits on what they can do.
It’s worth noting that an executor can choose to decline their responsibilities. In this situation, the court will appoint a new executor to handle probate.
What the Executor Cannot Do
Executors have two main duties: fiduciary and legal. Under the fiduciary duty, they must act in the best interest of the deceased, per the will, and execute it to the best of their ability. Under their legal duty, they must comply with any legal obligations set forth by the local probate law.
Things an executor cannot do include:
- Stop beneficiaries from contesting the will
- Change beneficiaries in the will
- Sign the will on the testator’s behalf. If the deceased doesn’t sign the will before their death, it’s the same as if they died intestate – or without a will.
- Execute the will before the testator passes away.
FAQs About Executors Rights and Responsibilities
When is an Executor Override Possible?
An executor override is perfectly legal if it ensures the executor maintains their fiduciary duty. Any overrides must be done to remain faithful to will and court orders. In most cases, a last will and testament provide broad legal protection for all the assets of the estate.
If, for example, a beneficiary asks to be paid out of order – such as before paying debts, the estate pays taxes – then the executor has can override the beneficiary.
Can There Be Changes to the Will After Death?
If, after the testator passes away, most of the time, the will must be executed as it is, in accordance with state and federal law. There are some exceptions, however. If all the beneficiaries agree to change a certain aspect of the will, it can be done.
This process is known as a deed of variation, which allows a beneficiary to change what happens to the portion of an estate that’s left to them.
- Sharing some inheritance with someone who wasn’t part of the original will – like a grandchild who was born after the will was created.
- Passing your inheritance to your children without making it part of your own estate
- Adjusting the share of the inheritance to reflect finances of different beneficiaries, for instance, if three children receive an equal share of money but two children don’t really it, they can adjust it so the family member in need receives a larger portion.
To be valid, the deed of variation has to be signed by every executor, as well as any beneficiary who loses out as a result of the change.
If a person who contested the will wins in court, then the will can be changed.
Can an Executor Be Removed?
Yes. If heirs or beneficiaries believe the executor isn’t fulfilling the deceased last wishes and acting as they dictated in the will, then they have the right to contest the will and bring a case to the probate court. The court may determine the executor isn’t acting in the best interests of the will and the other beneficiaries. If this is the case, they may appoint another person to take over.
When Should an Executor Seek Legal Counsel with a Probate Attorney?
As an executor, the main goal is to execute the will to the letter. If a situation is unclear, it’s best to seek legal advice from an experienced probate attorney. What’s legal to do in situations where the will is not clear is largely determined by your state’s laws.
If someone takes action that could be seen as a breach of legal and fiduciary duty, the executor could be held liable, resulting in civil liability.
Estate planning and probate are complex legal topics. If ever unsure about what to do, talk to a probate lawyer.
Can an Executor Also Be a Beneficiary?
Yes, it is possible, common. When a testator chooses a family member or family friend to serve as the executor, they may also receive a portion of the inheritance assets. It’s also possible to be an executor without being a beneficiary.
Waiting for an Estate to Settle?
If you’re an heir or a beneficiary of an estate that’s in probate, you may be able to access your inheritance funds through an inheritance cash advance. It’s a quick and easy process that won’t affect your credit report.