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Can a Will Be Changed Without the Executor Knowing?


Disclaimer: The contents of this blog are provided for information purposes only and do not constitute legal advice.

While you don’t necessarily have to inform your executor of any potential changes to your will, it is not recommended. Wills are fundamental tools in estate planning that allow you to maintain control over your legacy. A will provides peace of mind by ensuring that your assets are distributed according to your wishes. If you die without a will, your assets will be distributed according to the Wills, Estates and Succession Act (WESA).

One of the benefits of having a will is that you can select an executor, someone you trust to administer your estate. You can also name an alternate executor who’ll step in should your first-named executor be unable to act. The executor’s tasks include handling the funeral, paying estate debts, locating beneficiaries, filing income tax returns, and distributing estate assets according to the original will. As such, it’s important for you to be transparent with your executor when making changes to your will as this will prevent disputes and ensure that your wishes are carried out properly after your passing.

Onyx Law Group understands that creating a will can be a daunting task and our experienced estate planning lawyers can assist you in drafting a legally valid will and with the selection of an appropriate and trustworthy executor.

This blog aims to offer a brief understanding of wills, how wills can be changed, the role of an executor, and how wills can be changed with or without an executor knowing.

Scenarios Where a Will Can Be Changed Without the Executor Knowing

Scenarios Where a Will Can Be Changed Without the Executor Knowing

Generally speaking, some testators may prefer to keep their estate planning decisions private and may choose not to disclose changes to their will to the executor or other family members. This could be for personal reasons or to avoid potential conflict among beneficiaries.

However, it is also possible for the will to be changed without the executor knowing if the testator’s attorney suggests to the testator that it is in their best interest that they keep a part of or the entirety of their will confidential.

According to Chapter 3 of the Code of Professional Conduct for British Columbia: ‘A lawyer owes a duty of confidentiality to every client without exception and whether or not the client is continuing or a casual client. The duty services the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

As an executor, it can be disconcerting to discover that changes have been made to the will without prior notification. This situation may evoke feelings of uncertainty and concern regarding the administration of the estate. However, it’s important to remember that the testator might have had valid reasons for updating their old will discreetly.

However, if an executor has not been formally notified of their role yet there is no reason for the testator to advise the executor of any changes to the will.

According to Chapter 3 of the Code of Professional Conduct for British Columbia:

“A lawyer owes a duty of confidentiality to every client without exception whether or not the client is a continuing or casual client. The duty services the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

After someone passes away, they obviously cannot expressly authorize the release of information in the lawyer’s file, so an executor of a will is given this ability.

The Executor’s Role and Knowledge

The Executor's Role and Knowledge

Some duties of the executor named in a will include:

  • Completing an inventory and valuation of all assets and debts;
  • Gathering names and addresses of all beneficiaries and next-of-kin;
  • Taking control of all assets, including the transfer of ownership registration and the collection of any debts; and
  • Filing tax returns for the deceased and the estate.

Executors have a legal obligation to act in the best interests of the estate and its beneficiaries. This duty requires executors to manage the estate’s assets prudently, impartially, and with the highest level of integrity.

An executor is typically informed of their role by the testator before the creation of the will. The testator should ensure that the prospective executor understands the responsibility and consents to act in this capacity.

It’s advisable to inform your executor of the instructions outlined in your up-to-date will to provide clarity regarding your intentions upon your passing. Additionally, you should inform your executor of any modifications to the will, particularly changes to the appointed executor(s).

How a Will Can Be Changed

How a Will Can Be Changed

Wills can be altered through the execution of a separate document known as a codicil. For the codicil to be legally binding, it must adhere to the same criteria as a will, including being in written form, dated, and signed by you along with two witnesses.

Codicils can make minor changes or add important new provisions to your will. If you want to change a large portion or the majority of your already-existing will, it may be more beneficial to have a new will prepared rather than a codicil, as a new will can be easier for your executor and family members to understand.

Some circumstances under which a will might be changed are as follows:

  1. Familial circumstances;
  2. Marital status;
  3. Financial circumstances;
  4. Death of a beneficiary;
  5. Change of beneficiaries and/or executors; and
  6. Relocation:

Legal advice is essential when altering a will to ensure compliance with legal requirements, minimize risks, and protect the interests of the beneficiaries. It is a prudent step that can help safeguard the integrity of the estate planning process and mitigate potential challenges in the future.

Unfortunately, a beneficiary’s inheritance, just like any other possession, can be subject to theft. Inheritance theft is defined as the illegal appropriation of assets, properties, or funds intended to be allocated to beneficiaries in accordance with the terms of a will.

When meticulously drafted and regularly updated, your last will and testament ensures that estate benefits are properly passed on to your loved ones. These updates to your will also help to simplify the administration process. Conversely, an outdated will may result in unfavorable circumstances, such as possible legal conflicts among family members and the distribution of your estate according to intestacy laws rather than your specific wishes. Should there be any ambiguity with the drafting of your will, this also leaves your estate more prone to inheritance theft.

Our experienced estate planning lawyers can assist you in updating an existing will or preparing an entirely new will. Consult with our experienced team today at (604) 305-2923.

Correlation Between Wills and Executors

Correlation Between Wills and Executors

A will, also known as a last will and testament, is a legal document that outlines an individual’s wishes regarding the distribution of their assets and the management of their affairs after their death. The purpose of a will is to ensure that the individual’s estate is distributed according to their intentions and preferences and that their loved ones and beneficiaries are provided for in the manner they desire.

When preparing a will, you get to appoint an executor of your choosing. Your executor is the person responsible for carrying out the instructions in your will and settling your affairs.

Your executor should be someone you trust. The executor is the one who acts on your behalf after your death. They should be organized and reliable. The executor’s duties include arranging your funeral, locating your property, paying your debts, filing your income tax returns, and distributing your estate as instructed in your will.

If your will does not meet certain requirements, it is not enforceable. The general requirements for a legally valid will are as follows (this is not an exhaustive list):

  1. You must be 16 years of age or older;
  2. You must be of sound mind;
  3. The will must be in writing, signed by the will-maker, and signed in the presence of two witnesses who are over the age of majority.

Executors are obligated to adhere to the instructions outlined in the will, thus they lack the authority to alter beneficiaries. Those designated by the deceased will retain their beneficiary status unless sections of the will containing their names are invalidated through a successful challenge to the will’s validity.

Legal Safeguards and Considerations

Legal requirements such as having a codicil or new will signed by the testator in the presence of two witnesses who are of majority age are some of the possible measures set in place to safeguard the integrity of the will-changing process. Failure to adhere to these legal requirements could result in the interpretation of your will being different from your intended wishes.

If alterations to a new will are made incorrectly, it may be deemed invalid, prompting the use of the testator’s next most recent will. Should this subsequent will also be declared invalid, resulting in no valid will, the deceased will be deemed to have died intestate and the estate will be distributed in accordance with the WESA.

A beneficiary, intestate heir, or person with a financial interest in the deceased’s estate can contest a will by starting a court action. These actions can be resolved by going to trial, or outside of court by attending a mediation.

Preventative Measures and Best Practices

Preventative Measures and Best Practices

Testators can effectively communicate to the executor all matters regarding their will and any changes to it to ensure clarity, understanding, and alignment of what their intentions are for their estate. This can be done by scheduling meetings, providing written documentation, and explaining their rationale to the executor.

It is also crucial that executors stay informed of their role and any updates to the new will. Some tips for executors include maintaining open communication with the testator and proactively seeking updates from the testator regarding any changes to the will. It may be beneficial for an executor to reach out to the testator every six months to inquire if there have been any updates to their will.

Legal advice is of paramount importance for both testators and executors in the estate planning and administration process.

For testators, understanding their legal options, ensuring compliance, and updating and reviewing their estate planning documents, including wills, with an attorney is crucial in ensuring their assets are protected. When preparing a will, a testator’s legal options include naming beneficiaries and appointing a trustworthy executor.

For executors, speaking to an estate attorney to aid in understanding their legal obligations and navigating the probate court process is essential in effectively dealing with the testator’s estate and protecting their interests. Some examples of an executor’s legal obligations are initiating the probate process, managing the estate’s assets diligently, and keeping accurate records of all financial transactions.

Conclusion

Notifying an executor of their designation in your new will is crucial for various reasons. It ensures the executor consents to the role, comprehends their duties and prevents surprises or misunderstandings. Engaging in discussions about their responsibilities fosters trust and enables open communication for addressing any queries or apprehensions the executor may have. Establishing this communication pathway ensures that upon your passing, the executor comprehends your wishes and can distribute assets per the existing will seamlessly, avoiding confusion.

Transparency is key when involving the relevant parties in the estate planning process, alongside seeking legal advice regarding the appropriate details that can or should be shared.

We at Onyx Law Group believe it is important to know your legal rights and obligations before making any decisions. That’s why we offer a 30-minute free consultation to allow you to discuss your matter with a passionate and knowledgeable team member.

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