Elder relative unwilling to change will to reflect current wishes

Question

An elder relative, over 100 years old but with their mental faculties remarkably intact, has informed me after the death of their eldest child that I will be the executor of their estate. Let's say the estate's total value is more than $1 million and less than $6 million. It will be divided among ten beneficiaries, each receiving a percentage.

One heir currently lives in a house that would be part of the estate. The elder relative has stated that they must keep the house, anything inside it, and perhaps some additional funds for property taxes and such "off the top" (meaning, they receive this in addition to their percentage of the remainder).

For reasons that stretch over decades of family history, I believe strongly in the justice of this arrangement (which I do not benefit from). The beneficiary in the house devoted considerable time and energy to caring for the testator. Other beneficiaries have their own opinions, but most at least accept it as their relative's wishes.

Unfortunately, this arrangement is not reflected in the will. While I have expressed that I think this plan needs to be specified in the will, I doubt that will happen. In our culture, it is not well received to tell an older family member they must do something. The testator is the unquestioned benevolent head of the family.

What can I do, now and/or after the testator is deceased, to make their wishes occur? I'm guessing that if beneficiaries decide they want to fight about this, then there isn't much that can be done, but are there elegant solutions available if the other beneficiaries are cooperative?

Answer 1

The executor must follow the will

The executors legal duty is to execute the testator’s intent as detailed in their will.

While I have no doubt that you understand the testators verbal wishes as expressed to you on a particular day - how do you know they didn’t change their mind some time after that?

As others have said, with the beneficiaries’ agreement you can override the express written wishes but if one or more don’t agree, you will have to follow the will. To do otherwise exposes you to personal liability if a disgruntled beneficiary sues. The will is your shield, you step out from behind it at your peril.

Now, the beneficiaries may be perfectly happy with the verbal intent now but … when there is money on the table, they may see it differently.

Do yourself a favour, have the difficult conversation and get the will changed or refuse to be the executor.

Answer 2

What can I do, now and/or after the testator is deceased, to make their wishes occur?

A valid will is controlling. An executor's discretion is ordinarily limited to actions consistent with what the will provides, but can to the extent that the will affords discretion, act to carry out the decedent's intent.

are there elegant solutions available if the other beneficiaries are cooperative?

A mutual agreement of all persons interested in a probate estate can modify anything in a will. It isn't uncommon for these people to reach an agreement to do so if they are personally convinced that the intent of the decedent was different from what the last will actually says.

For example, I once prepared a draft will at the detailed and express direction of a man who fell into a coma that ultimately caused his death about two hours before he was due to sign it, and his descendants, who were the only people interested in the estate, mutually agreed to follow his draft will even though it was not binding because he didn't live long enough for it to be typed up and signed.

Answer 3

Suggest a joint meeting with their attorney to review the will. As a future executor you can honestly say you want to be sure everything is clear so you do not have to worry about dealing with conflicts later if the beneficiaries have different understanding of the terms. The person might react positively to helping make sure you are not in the middle of a dispute later if it can be avoided now.

Answer 4

The will has to be carried out as written, period.

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In our culture, it is not well received to tell an older family member they must do something.

So?? You've described 100% of cultures.

Approach the situation from an alternate angle.

Elder,

The wishes that you've communicated are not in the will and will not be enforceable. Would you like me to set up a meeting with the lawyer to make everything legally binding?

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You can refuse to be the executor and leave that to the alternate executor (if one was named). Else, a lawyer will be the executor.

Answer 5

What can I do, now and/or after the testator is deceased...

If the testator is unwilling to redo the will or add a codicil, perhaps you can suggest to your elder relative that they deed the house to the intended beneficiary now.

A conveyance called a "life estate" might, under your state's laws, mean that after the death of the beneficiary the house would become part of the estate. In the alternative, the house could be deeded with a warranty deed, for the usual sum of "$10 and other good and valuable consideration" and it would become the beneficiary's property to leave to his heirs.

Otherwise, as the other answers say, you are stuck with the terms of the will, and as the executor you have no power to change them, even if you know what the testator wants.

Answer 6

Try asking them to write down specifically what they want (in detail). I'd phrase it in a "I want to make sure I won't forget something important" sort of way. That is, you're not ordering them around, you're asking them to help you ensure their wishes are carried out appropriately. It's easy to forget things when you're emotional and recovering from the death of a family member.

The law varies from jurisdiction to jurisdiction but in most places, a will doesn't have to involve a lawyer. Documenting your wishes on paper plus a notarized or witnessed signature can be a valid will. Where I live, you don't even need witnesses if the document is in the deceased's own handwriting. Even if your locale doesn't recognize this as a valid will, it's strong evidence of their wishes - certainly stronger than just your word - and can go a long way in convincing the beneficiaries to voluntarily swap things around to achieve the same end result.

Also, as this question straddles the border between the Interpersonal Skills Stack Exchange site and this one, it may be worth asking it over there to get a different set of perspectives.

Answer 7

You perceive it as impolitic for you to give them orders.

But it is the elder who is giving you orders. The will are orders, and they are the orders that matter.

So you need to respond to the elder and say "I do not have a choice, I am going to do what the written will says. I like the family member too, but if the will does not grant the house, they probably will have to move out. I do not have the power to change your will, but I would be very happy if you were to change it to allow them to stay in the house."

And I don't care if you find this conversation uncomfortable. It is your job and if you can't handle it, resign as executor.

Answer 8

Let’s say there are two million dollars. The testator wants A to get 100,000 and then everyone getting 10% of the rest. But they refuse to change their will. You and most of the heirs agree. If the will was changed it would be 290,000 + 9 times 190,000 vs 200,000 with the will unchanged.

If you all agreed you could pay 200,000 to each heir, then everyone makes a present of 10,000 to A. You could make this slightly more likely to happen by giving everyone $190,000 and a check for $10,000 so with everyone present they each have the choice of handing over a piece of paper or keeping it. That way there is peer pressure and zero effort which improves A’s chances of getting 90,000 extra.

If someone insists on keeping the 200,000 there is nothing you can do. If that person is themselves the heir of someone else, they can create pressure. Say Brenda and her sons Jim and Joe are three of the heirs, and Joe wants to keep the money. Then Brenda can say “I will pay Joes money, and that will be reflected in my will. Joe, you will be better off paying”.

Answer 9

If they don't want to change the will, their other option is to gift the other items now. Then what is left is split evenly and the will does not need to be changed.

You would have to look at the effect on valuation and thus taxes. In some states in the US, property gets a stepped up basis on inheritance, thus there is no capital gains tax on the house, even though it has appreciated since it was purchased. That may not happen if it is a gift.