It is more frequent than one might expect. A parent passes away and the Executor named in the Will thinks that the disposition under the Will is just wrong. Or, they have had a development in their lives that makes implementing the provisions of the will “problematic.” In this sort of situation the answer is simple, either accept the language of the will and carry out the terms of the will as written, or, withdraw from being executor and get a lawyer to fight the will. The only choice you simply cannot make is to accept appointment as the executor and then refuse to carry out the will.
Executors are fiduciaries. This is the highest duty that the law can impose on anyone. Fiduciaries must be honest, true, selfless and willing to obey the law in all respects. So, like it or not, if Mom wanted that hairbrained niece in Tulsa to get a fortune it is not up to the executor to change things.
Remember too, if you are the one who you think should be by-passed, doing this the wrong way can actually lead to a big tax bill. So, if you are named executor in a will, the minute the “time has come” you should have good probate counsel guiding you. There is no other safe way to do the job.
This article is written by an attorney at Wyatt & Mirabella, PC. Always consult an attorney before making any legal decisions. To make an appointment today for a free consultation, please click here to contact us.