In a will, the person who will execute the wishes of the testator (the person who created the will) is called the executor. The executor of a will must understand what the will says and then do what the testator instructs him or her to do. This sounds straightforward- and in most instances it is. However, whether you are an executor or potential beneficiary under a will there are potential conflicts that arise in some cases when it comes to following the terms of a will and managing the expectations of a potential beneficiary under that will.
If a beneficiary disagrees with how the property in a will is being distributed, then that should not necessarily be a concern of the executor. Rather, the executor must focus their attention on what the will states regarding how property should be distributed and other details like this. The language of the will is not a suggestion for the executor. The executor of a will can find themselves in hot water if they disregard the terms of a will. Remember that there will be other beneficiaries who may take issue with the executor catering to the desires of a single beneficiary- especially if that catering violates some part of the will.
Many times, what ends up happening in a situation like this is that an executor attempts to hand out the property without filing a probate case. If the estate is relatively small and simple, and there is no debt to worry about, this could be possible. However, if there is a dispute that arises between beneficiaries or between the executor and a beneficiary there may be no choice but to file a probate case. The probate case will result in a judge providing oversight and instructions on how the issue should be resolved.
Of course, involving the courts can dramatically slow the process down because the executor will need to receive permission from the court to do much of anything in terms of paying potential creditors and then handing out property. If there is a beneficiary under the will who could stand to gain a great deal by the efficient distribution of property, then that is probably not going to happen with a probate case. Rather, probate will be orderly, but it likely not be all that quick.
The other option that you would have, were you to become involved in a person's estate as a beneficiary, is to hire an experienced probate attorney with the Law Office of Bryan Fagan. One of our attorneys can work with you to review the will and help you to better interpret your responsibilities. Executors can sometimes fall into the trap of trying to do what a noisy beneficiary wants rather than what the will says because the beneficiary is in your ear every day whereas a will is just a piece of paper. This is a mistake and a violation of the duties of an executor.
What are the responsibilities of an executor?
An executor of a will is named in the document itself. If you are named as the executor of someone's will then have an option of whether to accept that role. Hopefully, the person has the forethought to ask you whether you would be willing to serve in that capacity. We recommend that if you are drafting a will you should sit down with the person that you intend to name as the executor to determine whether he or she is willing to act as executor. This is a big responsibility for a person to have and it is not required of you to serve unless you willingly do so.
Accepting the responsibility to act as the executor of a person's will means that you are responsible for handling matters related to that person's estate. You have no responsibilities to do so, however, until that person passes away. Until then you have no formal legal responsibilities. When the person does pass away you have two different paths that may need to be walked down depending upon the nature of their estate and the circumstances that you find yourself in related to their death.
For one, you may need to file a probate case to have the will probated. The probate process involves filing a legal case and having a judge oversee the process involved with distributing assets and property as well as paying creditors. Once creditors are paid if any property is left then you would be responsible for handing out the property based on the terms of the will. The only judgment that you can exercise in this regard is about how you interpret the meaning of the will and the intention of the person that created the will.
The other path that you may go down concerning the will is to not probate the will. In this situation, you would simply take custody of the will and then go about distributing property in the manner stated by the document. This process looks like organizing the assets of the estate in a way that will make distributing them simpler. Remember that property is a broad category. There are several sub-types of property such as real estate, personal property, investments, other intangible property, etc. You will need to get this property organized so that you will be able to distribute the property when the time comes more efficiently.
As we mentioned a moment ago there may be debts owed by the estate. You will need to publish notice to potential creditors of the passing of the testator of the will so that they will have knowledge and notice of his or her passing. If you have personal knowledge of any creditors, then you will need to alert them to the passing of this person. That way these creditors can claim any debt owed to them. You may be in a position where you can negotiate with the creditor for a reduced amount of debt that would be owed.
Once all the creditors are satisfied and “paid in full” you can distribute property according to the terms of the will. Note that this does not mean that you will be able to distribute property according to the terms of the will as well as your own opinions. Even if you disagree with how the property is to be divided you are duty bound by the law to follow through with the testator’s intentions. The other side of the coin on this issue is that there are beneficiaries under the will who can potentially sue the testator’s estate and you for failure to distribute property based on the terms of the will. This opens you up to a great deal of liability, so it is in everyone's best interests, and required by law, for you to follow the terms of the will.
Is the beneficiary under a will able to dictate where the property is distributed?
No, the beneficiaries under a will are not in a legal position where they can dictate how property is divided once a testator passes away. There are situations where beneficiaries under a will can challenge the executor via the probate process if you as the executor fail to follow the terms of the will as far as how property is divided. Executors have a fiduciary duty to follow the will. This means that the executor must put the interests of the testator and their estate in front of their interests and opinions. This is the same legal standard, for example, that attorneys must follow in practicing the law.
It is not uncommon, and when you get right down to it is very common, for beneficiaries under a will to have anywhere from minor quibbles to outright disagreements with how you as an executor fulfill your obligations and discharge your duties as executor. This is what happens when death, money, emotion, and all the other circumstances related to a person's passing come into focus. At the end of the day, we are talking about human beings and the emotions that humans bring into any scenario. Throw all these factors into the mix and you have a potentially combustible situation on your hands.
Unless and until you as the executor violate the terms of the will or breach your fiduciary duty that we just finished talking about then there is not much that a beneficiary can do in terms of overriding you or the decisions that you make as executor. This is by design as a situation would get out of control if under most circumstances a beneficiary could at any moment legally challenge your authority to act under the will or otherwise make a stink about how you are behaving in your responsibilities. Executing on a will is hard enough as it is without an overly aggressive beneficiary acting outside the scope of their relationship to the will and outright challenging your ability to discharge your duties as executor.
Bad actions-based misconduct or a simple inability to perform the duties of the executor are the two main reasons why an executor may be removed by a probate court. The bar is not all that high in most situations when it comes to fulfilling the duties of an executor and following through with those responsibilities. Remember: all you as an executor must do to act as executor is understand the will and follow through with how the testator wanted their property to be distributed. How you go about doing that, your methods, and the time it takes to do this are not something that a beneficiary can challenge except in extreme situations.
How can you change the executor in your will?
Let's put the shoe on the other foot and take a situation where you may want to change the executor of your will while you are still living. There are countless different scenarios where you may want to change the executor to your will. The named executor of your will may have passed away himself, may no longer be competent to perform those duties or you may have moved far away to a place that doesn't make practical sense to maintain the same executor you had named in your will from a decade ago. As such, you may need to update your will.
One option at your disposal would be to simply draft an entirely new document where the only change that you make is to swap out executors. You can destroy any old copies of the will and make it clear in the new document that this version of the will is intended to take over as the controlling will in your life. This can be troublesome, however. To update a will means getting a couple of witnesses together, going before a notary, and then destroying all prior versions of the will. This can be more trouble than it is worth in the opinion of some people. Still, however, there are options available to you that do not involve having to create a brand-new document as far as that will is concerned.
Rather than concern yourself with updating an entire will just so you can swap out an executor, you can choose to draft what is known as a codicil to the will. A codicil is sort of like a legal “sticky note” that you would attach to the original document. This codicil would still need to be witnessed and notarized, however. The benefit of a codicil over drafting a new document would be that the codicil is honored under Texas law and does not require much effort on your part. The probate process, if your will ultimately does need to be probated would not be complicated by the inclusion of a codicil.
A handwritten note will do when it comes to creating a codicil. This is known as a holographic codicil. Two witnesses would need to be present with you before you sign the codicil. These folks will also need to go to court after you pass away to testify to the legitimacy of the note and your intention to swap out an executor for another if that becomes the major issue that forces your hand to draft the codicil.
One factor to bear in mind when creating a simple, handwritten codicil like this is that it may seem simple and straightforward to do it in this way, but it may not ultimately end up that way. See, we like to think of it as being the way that a person would have done it back in the frontier days. Sitting at their makeshift desk by candle or lantern light, your ancestors may have similarly updated their will. There is some degree of mystique surrounding the whole will creation process, to begin with.
However, what we would also share with you is that there are some added challenges on the back end of this process that may bring some caution to mind when it comes to creating a codicil using your handwritten notes. For one, the witnesses that would have to testify in court would need to be people who may have seen you sign the codicil or were at least people who were familiar with your handwriting and signature. The older you are the harder it may be to find people who can vouch for your handwriting or be familiar with your signature. If your executor or the administrator of your estate cannot find someone like this, then you would be in a position where the codicil may not be honored and the intent of your will may never truly be known.
When can a probate court change executors to your will?
As we talked about earlier in today's blog post there are limited circumstances in which an executor of your will may be changed out against the desire of the executor. This does not happen very frequently in probate cases but we would like to give you some appreciation for the circumstances under which this may become a reality for you and your family.
An executor will have access to the property that your estate owns. If the executor were to misuse that property on purpose with the intent to defraud your beneficiaries, then a court would change out the executor and appoint another person to act in that capacity. If the executor lacks the necessary mental acuity to perform this role, then that, too, would be a circumstance that allowed the executor to be removed and another appointed by the court. Finally, evidence showing that the executor was unable to perform their duties over a long enough period can lead to the removal of your executor. For this reason, you must think through the necessary circumstances of your case and make a wise decision regarding who should act in this capacity for your estate.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning and probate law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as how your family may be impacted by the filing of a probate case.