Can an Executor Change a Will?

Creating a will involves naming an executor, which is the person responsible for carrying out their loved one’s final wishes after their passing. Being named as an executor comes with a slew of legal duties along with the emotional toll of losing a friend or relative. Can an executor change a will after someone’s passing or allocate the estate assets other than how the will states?

An experienced trust attorney in Arizona can help you navigate this process should you find yourself in the executor role. In this guide, the legal team at Lincoln & Wenk, PLLC explains the basics of being an executor, what they are and aren’t allowed to do, and how they contribute to the estate planning process.

Executor vs. Beneficiary

During the will creation and estate planning process, there are two important roles that someone can designate to loved ones for their estate assets. The executor acts as an extension of the deceased and will carry out their final wishes as outlined in the will. This includes distributing assets to certain beneficiaries, who may or may not be the executor.

A beneficiary will receive any or all assets of the deceased. A will can list multiple beneficiaries but only one executor. For example, if an older adult has three grown children they want to leave their assets to, they could name all of them as beneficiaries but only designate one of their children, or another relative, as the executor.

Can an executor change a will if they’re not listed as a beneficiary and wish to become one? Some circumstances allow the executor to change the will, but this does not pertain to making themselves a beneficiary.

The Executor’s Role and Duties

A beneficiary has the luxury of inheriting someone’s assets once the final estate settles in probate court. The executor has far more responsibilities related to settling the estate, including:

• Locating and reading the will
• Connecting with a lawyer to begin the probate process
• Distributing assets to the appropriate parties
• Communicating with beneficiaries
• Filing paperwork for probate court

The executor has a fiduciary duty to maintain the estate before settling, including paying any debts and bills belonging to the deceased. For example, if someone lives alone when they die, it’s up to the executor of their will to continue to pay any utility bills or housing fees until a beneficiary either moves in or sells the inherited property.

Being an executor comes with tremendous responsibility which can be ongoing for months or until the estate finishes going through probate. Ideally, the testator will write their will and give advance notice to the person they select as the executor since this position involves various administrative duties that they’re legally required to carry out. Testators can also name a backup executor in case their first choice declines to take on the responsibility.

Times When Executors Can Change a Will

When can an executor change a will? While they can’t name themselves as beneficiary for their own gain, estate lawyers allow select changes to a will after it goes into effect. Check out the special circumstances when executors can update a will after the testator’s death.

The Estate No Longer Includes Certain Assets

While you can update your last will and testament multiple times during your lifetime, many people create a will and fail to make significant changes. This leads to a common problem when a will includes assets that no longer belong to the estate. For example, if someone owns a vacation property when they make their will but then sell it before their death without updating the will, the executor needs to handle this issue.

A Beneficiary Dies

Unfortunately, some wills list beneficiaries who are no longer alive. This creates one of the biggest legal issues for executors trying to carry out the deceased’s final wishes. They must consult with other beneficiaries listed in the will and try to reach an agreement on how to distribute assets.

Any time that the executor attempts to change the will after it goes into effect, they must have beneficiaries agree with the change and sign a deed of variation. A seasoned estate lawyer can oversee this process and try to mediate any disputes between the beneficiaries and the executor.

Debts Exist That Change the Estate’s Value

Not only can an executor change a will when assets no longer belong to the estate, but they can also update the document when estate debts come to light. Remember that it’s the executor’s responsibility to handle any debts and finances for the deceased. If the executor uncovers significant debts after someone’s passing and this information drastically changes the estate’s value, they can update the will accordingly.

Say someone names multiple beneficiaries in their will with the intention of giving each one equal inheritance. They designate one person as the beneficiary of their bank account, but the executor discovers thousands of dollars in credit card debt which would change that beneficiary’s inheritance and estate value. A lawyer will typically allow edits to the will after it’s in effect to account for this issue.

Final Wishes Are Unclear

Finally, executors have the right to change someone’s will if their final wishes are unclear. Estate planning attorneys offer legal advice regarding vague will instructions to ensure that the executor acts in good faith. Consult a professional near you if you’re an executor and are unsure how to go about someone’s final wishes.

The Power of the Executor

Being an executor comes with many legal responsibilities and powers that others generally don’t have regarding someone’s estate. Discover what an executor has the authority to do and what the law prohibits them from doing below.

Executors Can Take Charge of the Will

Not only can an executor change a will if necessary but they usually have the final say in how an estate is settled. The main priority of an executor is to act on behalf of the testator and carry out their final wishes. Whether they are a beneficiary of any assets or merely a third party, the executor should put their financial situation aside and see themselves not as someone the testator chose to inherit their estate but rather settle it.

With the help of a lawyer, executors can take charge of an estate following someone’s death. They have a legal obligation to bring the estate to probate court and, if necessary, represent the will in court. Once assets become available to distribute, the executor has the duty of distributing them according to the testator’s wishes.

Legal Limitations of an Executor

Serving as the executor of a will grants you significant power over an estate but it comes with its limitations as well. The law prohibits certain activities in order to maintain a power balance during this difficult process. If you’re an executor of a will, you can’t take the following actions:

• Change any living beneficiaries named in the will: To avoid giving themselves inheritance or taking assets away from the rightful person, executors can’t change the beneficiaries a testator lists. They can update the will if a beneficiary is no longer alive, though other beneficiaries will have to agree to this change.
• Sign an unsigned will on behalf of the deceased: Wills can only go into effect when the testator signs off on it during their life. An unsigned will may not be valid and require an estate lawyer to assess its contents.
• Distribute assets before the testator’s death: Even if someone has a terminal illness, the executor of their will can’t touch their assets until they pass. Wills don’t go into effect until the time of the testator’s death since certain assets, such as investment and bank accounts, can fluctuate in value. Distributing assets before the testator’s death prevents beneficiaries from receiving the correct value of their inheritance.
• Stop the beneficiaries from contesting the will: Beneficiaries have the right to contest the will in court. While this may prolong the probate process and keep the estate from settling sooner, executors can’t stop beneficiaries from acting how they see fit.

How Courts View the Executor

The court may need to step in to settle disputes between executors and beneficiaries. A beneficiary may claim that the executor isn’t fulfilling their duties and try to remove them from the will. The court will carefully examine the executor’s actions and determine if they’re following the testator’s final wishes.

Disputes may occur because beneficiaries are unhappy with their inheritance and try to take it out on the executor. As long as the executor acts in good faith, the court will protect them.

Contact Lincoln & Wenk, PLLC – Arizona’s Experienced Estate Planning Law Firm

Can an executor change a will? What does acting as an executor entail? Is it possible to turn down being an executor?

The knowledgeable legal team at Lincoln & Wenk, PLLC, can answer these questions and more. Turn to us for legal advice if you’re going through the estate planning process and need guidance. Call (623) 294-2464 to request a consultation with a helpful attorney.