Can An Executor Change a Will?

The Executor has a duty to carry out the wishes of the deceased, as set out in the Will.  Their main responsibility is to act in the best interest of the estate and its beneficiaries (the people who are set to benefit under the Will).  As such, the appointment comes with great responsibility.

A beneficiary is entitled to make a claim against the Executor personally if the Executor has not performed their role correctly, for example, the beneficiary is not paid their proper share, the estate funds are not looked after properly or the instructions in the Will are not carried out.

In order to ensure the Executor can meet their obligations they are afforded a significant degree of control and power.  The Executor effectively steps into the place of the deceased and becomes the decision maker for how the estate is managed.  It will be for the Executor to use their own judgment and autonomy to decide how best to meet the objectives under the Will.

When might a Will be changed?

In certain circumstances it can become necessary or desirable to change a Will retrospectively.  However, since an Executor’s role is to enforce a Will, they cannot change the instructions of their own accord, otherwise it would undermine the deceased’s wishes and the very purpose and function of a Will.  It would also leave the Executor exposed to a claim from a beneficiary who might be upset that the Will instructions were not being adhered to.

To mitigate against the risk of a claim, an Executor will either need permission of the Court or the agreement of all affected beneficiaries.

Agreement of the beneficiaries

If there is unanimous agreement between the affected beneficiaries, then it is possible for the Executor to enter into a written legal document, known as a deed, with the beneficiaries to formally record changes to the terms of a Will, provided the deed is completed within two years of the deceased passing away.

Some of the more common examples where parties might agree to a change to the Will include:

• Financial savings

Allowing assets to pass in a certain way or to certain people can help reduce or possibly eliminate tax.

Example 1

The estate is calculated as having an inheritance tax liability.  The executors and beneficiaries can choose to redirect all or part of the estate to someone who is automatically exempt from paying inheritance tax, such as a spouse or charity, to eliminate the inheritance tax the estate would otherwise have paid

Example 2

The sole beneficiary, Mr A, is independently wealthy and financially comfortable and was considering in giving away some of the inheritance he is due to receive to his own children.  If Mr A receives the gift left under the Will of the deceased it would increase his personal wealth and could make his own estate liable to pay inheritance tax when he eventually passes away.  To mitigate against this risk, Mr A could change the Will to allow his share to pass directly to his children.  Thus it does not increase his own wealth or inflate the amount of inheritance tax his own estate might pay when he passes away.

• To reflect a change in circumstances

Sometimes family members and beneficiaries get together to agree a different outcome to the Will to reflect what they feel is a fairer or more appropriate outcome.

Example

A Will left cash gifts to three named grandchildren, with everything else passing to two named children.  The deceased had two additional grandchildren before he passed away but they were not named in the Will as it had not been updated.  The two children agree to change the Will to add in the missing two grandchildren.

Where there is a mistake or uncertainty in a Will, the beneficiaries may not be able to agree in its meaning.  In such a scenario the Executor may need to ask the Court to decide.  This is likely to be a costly exercise for the estate and puts the Executor at risk of upsetting some beneficiaries, which could in turn give rise to complaints. The Executor should seek expert advice before taking such steps.  Where Court proceedings are needed the Executor should consider asking the Court to approve the proposed steps and costs of the Court proceedings being paid from the estate funds.  This can help mitigate any personal liability on the part of the Executor.

What if there is no Will?

If a person passes away without leaving a Will the law sets out a default set of rules which dictate who is responsible for dealing with the estate (known as an Administrator) and who inherits the estate.  This is known as the ‘intestacy rules’.

The intestacy rules can be quite complicated, but generally it provides for those closest in relation, starting with spouse or civil partner, to be eligible to both apply to be the Administrator.  Once appointed, the Administrator must then follow the intestacy rules when dividing the estate.

Much like with varying a Will after the event, a deed can also be used to change the intestacy rules, providing the administrator and any affected beneficiaries agree.

How to avoid needing to change a Will after death

It is always better to have your affairs and wishes in order during your lifetime to avoid your family or loved ones have to correct a situation after the event, often at additional cost.  The best way to do this is to have a Will and keep it updated.

It is equally important to choose a suitable executor when preparing your Will.  The nominated person(s) will have to take on the responsibility and potential liability for ensuring your wishes are carried out so it is always advisable to speak with them beforehand so that they are aware and agree to the proposed appointment.