Can an executor change a will in Arizona?
You’ve carefully created your will and named an executor. But can an executor change a will after the death in Arizona? Here’s what an executor can and cannot do.
Statistically, it takes around 18 months to settle 80% of estates. A lot can happen during that time.
Still, an executor can’t perform actions that don’t benefit your heirs, estate beneficiaries, or your estate. In fact, beneficiaries can take action against executors who don’t conform to these guidelines. An executor, also know as a personal representative in Arizona, has a fiduciary duty to the estate and its beneficiaries. They have to follow the probate code and they are also subject to the probate court.
Keep reading to learn more about the answer to the question, “Can an executor change a will?”
What Is an Executor?
An executor of a will, or personal representative, manages and completes the probate process. They perform this task on behalf of a deceased individual’s estate on his or her death.
Often, someone will name their oldest or most responsible child as an executor of a last will and testament. The child must then manage the estate probate procedures.
These procedures might include paying debts using estate assets. They may also include distributing assets or selling real estate. The executor will also be responsible for paying all the estate taxes, any inheritance tax and any other debts related to the estate and the estate's assets.
Who can be an executor?
If a person died without a Will we usually say they died intestate. An intestate succession will them apply. Usually an informal probate process will be necessary to settle the deceased person state. State laws have a clear guideline of who can and who can't no be an executor of an estate.
Usually a personal representative or personal representatives are named in the Will, if it exists. Usually if a Will exists a formal probate will be necessary. The probate court will them appoint a personal representative for the estate. The person named in the Will will serve as executor, or an executor override can be requested, and a new executor will have to be appointed by the probate court.
Out of state executors are more common than expected. They will still have to follow Arizona state law and the legal process defined in the state. Most states have different laws in relation to personal property. Some states are a community property state or a separate property state. The our of state executor will have to remember that Arizona law in this case will always be the one that matter. Only a probate attorney licensed in Arizona will be able to give what constitute legal advice properly. Arizona is a community property state. Colorado for example is a separate property state.
Small estates usually will not have a personal representative. Self proving affidavit will deal with real property and other assets in the estate.
An executor must perform many important tasks to meet the wishes of the decedent. Every Last Will is different, but executors typically have some similar tasks they must perform. They do have a fiduciary duty to the estate and its beneficiaries and they can be hold liable for any mistakes they do.
For example, they must file the Last Willa and Testament with the court, if one exists. It is also recommended that an executor also hire an attorney for the probate process. That is specially important if there is any chance of fighting and litigation in the future.
Even if the executor is the surviving spouse or another family member they still need to follow the whole probate process. Being a family member doesn't give an executor special powers to change the wishes of the deceased person. The entire estate will still have to be evaluated, selling property will have to happen according to market value, and any estate tax will have to be paid.
Furthermore, the executor must identify and protect the assets of the decedent. In addition, an executor must review the will and inform beneficiaries of any important matters.
The Executor-Beneficiary Relationship
An executor must act in the best interests of an estate and its beneficiaries. Also, they can’t change a will without the permission of the individuals named in the will. Assuming that the Will was created when the deceased person was of sound mind before the individual's death.
Still, changing a will is possible. An executor must create a Deed of Variation to do so and usually a family agreement and court approval will be necessary. An executor can’t perform this action on their own. Beneficiaries or anyone else who would share an inheritance must also agree to and sign the Deed of Variation.
When Asset Distribution Differs from the Will
An executor cannot override a will. Still, it isn’t always possible to carry out a will as desired by the decedent. Sometimes, in fact, it’s impossible to comply with the terms of a will.
For instance, a decedent may have requested an heir receives property they no longer own. In this case, it’s impossible for the executor to gift that property to the beneficiary. There are very few exceptions though and they should be evaluated with a lot of care.
In other instances, someone may pass away while owing a debt. If so, the executor must pay any debt immediately out of the estate. This obligation can reduce the inheritance beneficiaries receive.
Can an Executor Change a Will?
An executor also can’t change a will. They must distribute assets to any heirs as directed by the will.
In some instances, a beneficiary may feel the executor isn’t fulfilling the decedent’s wishes. For example, the executor may not follow the instructions dictated by the will.
In that case, a beneficiary may take steps to receive what’s fair and desired by the decedent. The beneficiary has a right to contest the will through litigation.
The Influence of Executors
An executor has the final say in matters of a will. However, they must comply with the law and follow the probate process in Arizona.
The executor must comply with the will. A beneficiary has the final say in will matters as long as they remain within these boundaries.
Under no circumstances can an executor ignore the directions of the will. For example, they cannot withhold inheritances.
Executors also can’t sell a property at an excessively low price. If so, beneficiaries have the right to pursue legal avenues.
What to Do if an Executor Makes Changes to a Will
If a beneficiary doesn’t follow these guidelines, your beneficiaries have a right to sue. For example, a beneficiary may want to challenge the distributions of a trust or will. In that case, they can contest the will or trust in probate or trust litigation. Remember that the personal representative has a fiduciary duty to the estate and they will be liable if they don't receive proper legal advice.
Alternatively, a beneficiary may believe they deserve a larger part of an inheritance than what’s specified in a will or trust. In that case, the beneficiary must hire a counselor and file a contest petition.
It’s better, however, to work with an experienced estate lawyer who can help your family avoid these kinds of disputes. If anything it is even better to have a proper estate planning in place to avoid probate all together. An estate planning lawyer will be able to advise your family correctly and save you a lot of time and money.
Do I Still Need a Probate Lawyer if There’s an Executor?
You should make sure trusted Chandler estate planning attorneys become involved in the process as soon as possible. By doing so, you can protect the interests of your family. An experienced estate lawyer will ensure your family receives their rightful inheritance.
It’s much easier for your family to claim their inheritance before litigation. It’s also easier to claim an inheritance before the distribution of assets.
With this in mind, it’s a good idea to work with an experienced estate lawyer to protect the interests of your family and loved ones. Moreover, you should work with an estate planning attorney in Chandler, AZ who’s familiar with the area.
Trust Us to Solidify Your Will
Now you know more about the answer to the question, “Can an executor change a will ?” Citadel Law Firm can ensure your executor conforms with will and beneficiary designations as desired. We are a trusted law firm in Chandler, Arizona.
A will can serve as the focal point of your inheritance distribution and work alongside a living trust in Arizona. We can also help you develop a complete estate plan to go along with your will to completely avoid probate.
Schedule a free consultation today to learn more about creating an estate plan and protecting your family’s interests. Click on the button below or call (480) 565-8020, our probate attorneys will be pleased to help you.
This article is for general informational purposes and it doesn't constitute legal advice.