Can the terms of a Will be changed to make them “fair”? Let’s say that a parent has died. Under the terms of the parent’s Will, one of four children is disinherited. The child and parent did not get along, and, for good reason. The parent was a bit unreasonable in the eyes of all four children. Are they stuck with the terms of the Will? Is the one child out of luck? Maybe not.
Executor Cannot Change the Terms of a Will
An Executor is duty bound, by law, to carry out the terms of the Will. As a fiduciary, the Executor has control over the assets of the estate, paying off creditors, and is obligated to distribute assets as stated in the Will. An Executor does not have the legal authority to change any terms of the Will, simply by being the Executor. More is required.
What if the Beneficiaries Agree?
In New Jersey, if all of the “successors” agree to a different distribution of the estate than what is stated in the Will, the Executor is bound to follow the new agreement. NJSA 3B:23-9. Returning to our story, above, if all of the children agree that it is not fair that one child be disinherited, all of the children can sign an agreement, perhaps giving all four children an equal share in the estate, despite the terms of the Will. This agreement is called an “Agreement Among Heirs”.
Death and Taxes….
Note that the agreement can only cover the distribution of the “net” estate: what the beneficiaries get. An Executor must still pay the proper taxes and pay creditors. No agreement can change this requirement. An Agreement Among Heirs can also be done where there is no Last Will. If there is no Will, then the estate is distributed to the people named under the Intestacy Statute. This outcome can be changed by an agreement.
Do I Need an Attorney?
“You don’t know what you don’t know”. It is a rare estate that has no issues beyond the “ordinary” probate. An experienced professional knows the answers to your questions and how to act on them for your benefit. Did you know that the Will can be changed?