In certain cases, yes, the executor can change the will. Find out if this applies to you below. Inheriting a property you want to cash out? Fill out the form to get started on your free cash offer!
Can an Executor Change a Will?
Navigating the death of a loved one becomes more difficult when you are assigned as the executor of their last will. In most cases, you have to deal with beneficiaries wanting more than their share or get ahold of missing heirs. If these issues arise, is an executor override possible?
Executors can only change or override an original will if the beneficiaries agree or the court orders it. The most common reasons why executors need to make changes to the will are the testator's existing debt, death of a beneficiary, vague wishes or requests, the inheritance assets listed don't belong to the state, and the testator wasn't in his right mind when writing the will.
To understand the powers of executors and answer the question, "Can an executor override a beneficiary?" check out the rest of this blog! Here, we evaluate the role of an executor— from their fiduciary duties to what they can't do.
Important note: The content of this article is not intended to constitute legal advice.
What is a Will Executor?
A will executor is someone who administers the last will of someone who died. They look after the estate and carry out the proceedings, so the inheritance assets are divided among the heirs.
Ultimately, they should remain faithful to the wishes of the person who died. If they need to seek legal advice from an attorney about the administration process, they are permitted by the law.
While it seems that the executors of a will have a lot of power, they are actually bound by the law and there are legal limits to what they can do.
Who is the Executor?
Typically, the will executor is appointed by the testator. But if an executor is not identified, the court will appoint one— which is often the spouse, the elder child of the testator, or a close family friend.
It is also quite common for a beneficiary to be named as the executor. This can cause disputes and a lot of conflicts if the executor tries to override the last will.
On another note, many states prohibit appointing minor children as well as convicted felons to serve as executor.
What is the Fiduciary Duty of a Will Executor?
The primary legal duty of executors is to carry out the testator's wishes regarding his properties and other assets. All their actions after being named executor should be in the best interests of the estate, so they can fulfill their fiduciary duty.
Specifically, here's what a new executor is expected to do in accordance with their fiduciary duty and the state's laws:
- Take inventory of the assets left by the deceased
- Validate the last will by applying for probate
- Seek counsel from a probate attorney from a reputable law firm
- Interpret and distribute inheritance assets according to the will
- File for necessary tax returns
- Paying debts and bills of the estate
- Represent the will to the court (with the help of a probate lawyer)
- Sell assets before the distribution of inheritance to every family member
If these duties are breached, executors would be held liable, resulting in civil liability. They would have to get an attorney since they could possibly go to court.
Is Filing a Petition to the County Probate Court Necessary?
If the assets are modest, the will's executor may not need to file a petition in the county probate court or get a probate attorney to seek legal counsel.
An informal probate process or small estate procedure would already suffice. This can help the executor save time and the estate save money.
Can an Executor Override a Beneficiary?
One of the most common questions asked by many is this: "Can an executor override a beneficiary?" The answer to this is not straightforward.
An executor cannot change a will all on their own or override a beneficiary or family member, even with the help of an estate or probate lawyer.
If you are a beneficiary of a will, you have the rights to the estate as stated in writing and this cannot be changed by the will's executor just because they want to. In other words, executors do not have the final say.
It is possible, however, for the executor to file for a variation of trust if there are valid reasons to change the last will.
Every single beneficiary, especially those whose inheritance can possibly be diminished by the change, should agree to get a variation of trust or deed or variation. The changes should also be reviewed by an attorney.
Here are some of the common reasons why an executor override may be necessary.
The Testator Wasn't of Sound Mind When Writing the Will
A will can only be considered valid if the deceased or testator was of sound mind when it was written.
In other words, they should be able to choose their estate beneficiaries according to their will (and not dictated by someone) and appoint an executor that they deem capable of handling the task. They should also clearly understand the consequences of their actions and choices.
Changing the last will when the state of mind of a person is being contested can be really difficult. In most cases, an estate lawyer should be involved to provide legal counsel and solid proof should be provided. The process becomes more complex when medical records are legally required.
There are Debts to be Paid Through the Estate Assets
In many cases, the testator has unpaid personal debts and the properties that are supposed to be distributed to the estate beneficiaries are used as a lien. This means the last will cannot be executed exactly as the testator wished.
All the debts should be settled first through the executors. This may include taxes, mortgages, personal debts, etc.
The Will is Vague
If there are parts of the will that are vague, the executor must interpret them. While this may seem like an easy task, this could also mean major changes to the will, especially if a beneficiary disagrees with the interpretation.
The executor would have to work with the beneficiaries in order to ensure that the interpretation or changes to the will are fair.
Note that this also covers outdated wills. For instance, if a will says that the assets should be divided equally among two children and then a third one comes along, changes should be made so all three children would get an inheritance.
A Beneficiary of the Will Has Died
Typically, estate beneficiaries or family members can't inherit a real property until they live for a period of time after the testator has passed. This specific amount of time is called the "survivorship period" and ranges from 5 to 60 days.
If a beneficiary dies during the survivorship period, it means they have yet to inherit the real property.
In such a case, changes will be made to the last will in order to pass the estate assets to an alternate beneficiary, the residuary beneficiary, or the primary beneficiary's descendants if the anti-lapse law is applied.
The Assets Listed Don't Belong to the Estate Anymore
An executor cannot distribute real property that doesn't belong to the estate anymore. For instance, if a vacation house was sold and the last will wasn't amended, the executor, along with the beneficiaries, would have to work out a different estate distribution plan while the will goes through probate.
Can an Executor Decide Who Gets What?
No. The executor doesn't have the right to decide who gets what in a will or change beneficiaries. They can only distribute the estate assets to the rightful beneficiaries according to the instructions of the testator.
As stated earlier, an executor override would only be possible if all the beneficiaries agreed. Which means the executor doesn't have the sole power to dictate who gets what, even in the case of amendments.
What an Executor Cannot Do
The law limits the power of an executor, especially since, in most cases, they're also one of the beneficiaries of the testator. This is to avoid conflict of interest during the distribution of estate assets.
In connection to this, here is a list of what an executor cannot do:
- Perform duties without being recognized by the court as the legal executor
- Make changes to the will (i.e., override a beneficiary, decide who gets the larger inheritance, etc.) without filing for a variation of trust
- Withhold real property from a beneficiary or perform any actions that aren't stated in the will (this is most common when a family friend is appointed as executor)
- Distribute assets before the testator dies
- Go against the local probate law
- Increase their inheritance (if they are also a beneficiary)
- Stop beneficiaries from contesting the will
- Make a profit from being an executor
- Ask someone to fulfill their responsibilities (ex., filing for probate process) unless it is stated in the will that they are allowed to do so
- Use estate assets according to their personal interests
- Buy assets of the estate without asking the permission of the affected beneficiaries
- Use estate assets for reckless investments
What Happens When an Executor Cannot Locate a Beneficiary?
If the will is in probate and the executor cannot locate a beneficiary, it must be proven to the court that every possible way to find that person has been made. The executor is expected to track the beneficiary through their:
- Close relatives
- Last known mailing address
- Current and previous employers
If the executor still hasn't found the missing beneficiary, the usual suggested legal action of an attorney would be to file a petition to declare the person as deceased or deposit the missing beneficiary's inheritance to the county.
Note that for a beneficiary to be declared deceased, he should be missing for at least 5 years.
Although depositing the inheritance of the missing heir to the county and letting the court distribute it to the other beneficiaries takes much more time, this is actually in the best interest of the executor. It offers more protection than distributing the assets independently.
For instance, if the executor distributed the inheritance to the other beneficiaries and sold it, a major conflict would arise if the rightful beneficiary appeared after many years. The executor will have to seek help from an attorney if this is the case.
Selling the Estate
Now that we have established that an executor override is not possible for the executor to process alone, the next legal action would be to proceed to a home sale and divide the profit to the beneficiaries according to the wish of the testator.
A home sale usually happens when the testator doesn't have many properties to be distributed or the testator wants to avoid conflict that may arise from distributing properties of unequal value.
Selling Estate Property to a Cash Buyer
The fastest way to sell an inherited property or any real estate that is going through the probate process is to sell to a cash buyer. Cash buyers are quick to give cash offers and they close fast. They are your best option if you want to get rid of an inherited property immediately.
Here are some more reasons to sell to a cash buyer:
- They'll buy the property even if it is undergoing the probate process.
- They won't require you to repair the inherited home.
- They don't usually back out of a sale when they've put in an offer.
- They don't charge closing fees.
- They will allow you to choose a closing date.
- They'll buy the inherited real property even if it has an odd layout.
Compared to listing on the traditional market and working with an agent, selling to a cash buyer is the most hassle-free since there aren't any lenders involved.
The executor won't be burdened with the real property for long and the beneficiaries would get their inheritance right away.
Final Thoughts: Can an Executor Change a Will?
Many people desire to be an executor of a will, thinking that the position comes with a lot of power. The truth is, being one only means executing the deceased's wishes— nothing more, nothing less. An executor override is not possible without filing for a deed of variation.
If you're an executor who wishes to sell an estate property so you and the beneficiaries can finally move on, connect with us at Sell My House Fast. We'll give you an offer based on the fair market value of the property and close according to your given timeframe.
Fill out our form below or call us at (844) 207-0788 to start selling estate property today!