The answer to the question can an executor change a will is no. It is the executor’s foremost duty to adhere to the testator’s wishes. In fact, once the testator dies, the will is irrevocable and cannot be modified anymore.
The executor was chosen by the testator to administer the testator’s wishes, and it is the fiduciary duty of the executor to comply with the will of the testator.
If you are asking can an executor change a will, you may need an attorney. We at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.
There may be times, however, when the will of the testator cannot be implemented.
For example, the testator leaves his 2019 Tesla car to his son, but before he dies, he sold it. In this case, even if the will of the testator says that his son receives the 2019 Tesla, if this specific car is not part of the testator’s estate anymore, the executor cannot give such car to the son. This does not mean that the executor has changed the testator’s will. The will stays the same, but such provision cannot be implemented.
What if, the testator simply said, I give a car to my son. The will was signed in 2012. When the testator died, there were 2 cars in his estate, a 2019 Tesla and a 2010 Toyota. Which car would the son receive? In this case, it would be wise for the executor to seek counsel on which car to distribute to the son since there is ambiguity in the implementation of the will’s provisions. It is always important to determine the intent of the testator when he made the will.
Suppose that there was only one car in the estate, but before the testator died, he crashed the car and got the insurance proceeds. Is the son entitled to the insurance proceeds? Generally, the son is not entitled to the insurance proceeds and the gift adeems.
What if, the testator died in a car crash, and the car was destroyed during or a little bit after the testator’s death. Is the son entitled to the insurance proceeds to replace the car? In these cases, you need to consult with a lawyer because case law may differ from state to state.
Above examples show that, even if the testator has made specific gifts in this will, it does not mean that the executor is changing the will when the executor fails to give that specific gift to the specific beneficiary. Because can an executor change a will? No. But if you have any doubt and think that the executor is changing the will, consult with a lawyer immediately. If you are the executor and there is any doubt regarding the implementation of the will’s provisions, you also need to seek counsel before making any distribution to ensure that you will not be made personally liable for any mistakes made in the administration of the estate.
At times, one of the distributees or beneficiaries may object to the will once it is offered for admission to probate by the executor. In this case, in order to avoid the costly expenses of litigation, beneficiaries can enter into a stipulation changing the terms of the will.
For example, the spouse was left out of the will. The spouse now claims that the will was invalid, and in addition, claims that she is entitled to 1/3 of the estate under the spousal right of election. All the beneficiaries, in this case, may enter into a stipulation, changing the terms of the will, to give a share to the spouse. If the stipulation is approved by the court, the executor has no choice but to implement the terms of the stipulation, and not the will anymore. In this example, it is not the executor who has changed the will but all the beneficiaries by stipulation.
An executor’s primary duty is to implement the wishes of the testator in the will. Before the executor decides to vary its implementation from the will, the executor needs to seek counsel. If you are a beneficiary, on the other hand, who feels that the executor is changing the terms of the will, consult with an estates lawyer to know your rights.
We have represented both executors and beneficiaries in many estate cases, and we can help you. If you are asking can an executor change a will, you likely need representation by an attorney. We at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.