Can an Executor Change a Will In California?

Can an Executor Change a Will in California?

Dealing with a loved one’s passing gets trickier when you’re put in charge of carrying out their last wishes. Often, you’re faced with beneficiaries wanting more than what’s rightfully theirs or trying to locate missing heirs. If these problems crop up, can you, as the executor, make changes?

Executors can only alter or disregard a will if the beneficiaries agree or if the court mandates it. The most frequent reasons for executors needing to modify the will include the deceased person’s outstanding debts, the death of a beneficiary, unclear wishes or instructions, assets listed in the inheritance that don’t actually belong, and the deceased not being of sound mind when drafting the will.

To grasp the authority of executors and find the answer to whether an executor can override a beneficiary, delve into the remainder of this article! Here, we explore the duties of executors— from their legal responsibilities to what they’re not allowed to do.
Important note: The content of this article is not intended to constitute legal advice.

What is a Will Executor?

A will executor is a person who manages the final will of someone who has passed away. They oversee the estate and handle the procedures to distribute the assets among the heirs.

Their primary duty is to honor the wishes of the deceased individual. If necessary, they can consult with a lawyer regarding the administrative tasks, as permitted by law.

Although will executors may appear to wield considerable authority, they are constrained by legal regulations and there are limits to their actions within the law.

Who is the Executor?

Typically, the will executor is appointed by the testator. However, if no one is chosen, the court picks someone—often the spouse, the oldest child, or a close friend. Sometimes, the person inheriting from the will is chosen to carry it out. This can lead to arguments and a lot of disagreements if they try to change the will. Also, in many places, kids who are too young and people who have been convicted of serious crimes are not allowed to carry out a will.

What is the Fiduciary Duty of a Will Executor?

The main responsibility of executors is to fulfill the wishes of the person who made the will concerning their properties and assets. Everything they do as executors should benefit the estate, so they can meet their legal obligation. 

In particular, here’s what a new executor is supposed to do following their legal obligation and the laws of the state:

• 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 can’t alter a will alone or supersede a beneficiary or family member, even with legal assistance.
As a will beneficiary, you have rights to the property as outlined, and the executor can’t alter this at will. In essence, executors lack ultimate authority.
However, an executor can petition for a trust variation with valid reasons to alter the will.
All beneficiaries, especially those impacted by the change, must consent to a trust variation. Legal review is also advisable.
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.
Basically, they are able to pick who gets their property when they die and name someone they trust to manage everything. They should know what happens based on what they decide.
Altering a will when someone’s mental state is questioned can be tough. Usually, a lawyer should help and there needs to be strong evidence. It gets trickier if medical records are needed.

There are Debts to be Paid Through the Estate Assets

Often, when someone passes away, they may have outstanding debts, and the properties they intended to leave to their heirs become collateral for those debts. This can prevent the will from being carried out precisely as the deceased person had planned.

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 unclear sections in the will, the person in charge must explain them. Though this may seem simple, it could lead to big alterations in the will, particularly if a beneficiary doesn’t agree with the explanation.

The person in charge would need to collaborate with the beneficiaries to make sure the explanation or adjustments to the will are just.

It’s important to mention this also applies to old wills. For example, if a will states that assets should be evenly split between two children and then a third child is born, adjustments should be made to ensure all three children receive an inheritance.

A Beneficiary of the Will Has Died

Usually, those who are set to receive property from a deceased person can’t actually get it until they’ve been alive for a certain period after the person died. This time frame is known as the “survivorship period” and it can be anywhere from 5 to 60 days.

If someone set to inherit property dies during this period, they won’t receive the 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

A executor can’t hand out land that’s no longer part of the estate. For example, if a holiday home got sold and the will wasn’t changed, the person in charge, with the people inheriting, need to figure out a new plan for dividing the estate while the will is being sorted out in court.

Can an Executor Decide Who Gets What?

The executor lacks authority to determine will distributions or alter beneficiaries. They are solely responsible for allocating estate assets to rightful beneficiaries as per the testator’s directives.
An executor override requires unanimous beneficiary consent. Therefore, the executor cannot unilaterally dictate distribution, even with amendments.

What an Executor Cannot Do

The law puts restrictions on the authority of an executor, particularly because they often inherit from the person who made the will. This is to prevent any disagreements when dividing up the person’s property.

As a result, here’s a rundown of what an executor isn’t allowed to 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 property’s ownership is in probate and the person in charge can’t find the rightful recipient, they need to show the court they’ve done everything possible to locate them. They’re supposed to search for the recipient using:

• Close relatives
• Last known mailing address
• Acquaintances
• Current and previous employers

If the person in charge still hasn’t located the missing inheritor, the standard legal recommendation would be for a lawyer to file a petition to declare the individual as deceased or transfer the inheritance of the missing inheritor to the local authority.

It’s important to note that for an inheritor to be declared deceased, they must be missing for a minimum of 5 years.

While transferring the inheritance of the missing inheritor to the local authority and allowing the court to distribute it to the other inheritors takes longer, it’s actually in the best interest of the person in charge. This provides more safeguard than distributing the assets separately.

For example, if the person in charge distributed the inheritance to the other inheritors and they sold it, a significant conflict could arise if the rightful inheritor surfaced years later. In such a scenario, the person in charge would need to seek legal assistance.

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 In California

The fastest way to sell an inherited property or any real estate in probate is to sell it to a cash buyer. Cash buyers provide quick cash offers and close fast, making them the top choice for immediate disposal of inherited properties.

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.

When you sell directly to a cash buyer, it’s way easier than going through the regular market with an agent because there’s no need to deal with lenders.

The person in charge won’t have to hold onto the property for too long, and those entitled to inherit will receive their share promptly.

Final Thoughts: Can an Executor
Change a Will in California?

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