In the process of creating an estate plan, an important decision is made by the testator (the person creating the will) of whom will serve as the executor. While the person chosen is sometimes a close friend or family member, there are instances where one might need to appoint a new executor.
Executors are changed for a variety of reasons ranging from the original individual no longer feeling comfortable with the responsibility, to a change of heart on behalf of the testator. No matter the reason, it is fully possible to change the executor of a will so long as the proper conditions are met.
While state law varies on the exact requirements, the following is an overview of what the substitution process might look like in California probate court.
Responsibilities of an Executor
The executor of a will is an individual with the responsibility of distributing the assets of the estate after the testator has passed. This individual, even if explicitly named in the will, also is an appointed person by the Court to act in this capacity.
For more information on the responsibilities of an executor, see our article on the topic here.
Amending the Will
Minds and circumstances are prone to change. When changing the executor of a will, there are two options that can be taken: redrafting the document or attaching a codicil.
The decision on which path to take is determined by several factors– most importantly, the extent of the changes desired.
In instances where more involved amendments are needed, it may be easier to compile a new will. This new document will need to go through the same process of validation as the original, such as a signature by the testator and two witnesses. In instances requiring only a minor addition or change, a codicil may suffice.
Redrafting the Will
In cases where changing an executor is one of several changes being made, it is often easier to redraft the will entirely. While this process is more involved, it often provides cleaner, clearer, and more accurate changes. Furthermore, a new will ensures that there are fewer documents to keep track of or possibly misinterpret when it comes time to assess the will.
Attaching a Codicil
”Codicil” is a term used to describe an amendment made to probate documents.
Codicils act as supplementation to your existing will. Even with the addition of a codicil, the original document remains operative and the codicil is read as complementary material.
While on the surface adding a codicil seems to be the easier option, it should be noted that a supplementary amendment may inadvertently create unnecessary confusion. Such complications are often the cause of a codicil which is poorly written, unclear, or does not properly define which section of the original will it intends to modify.
Validating the Codicil
It is important to note that for a codicil to be valid, it must go through the same process required when validating the original will document. As a general guideline, this would include:
- The document must be signed by the testator
- The signatures of two adult witnesses
California state law does not require for a codicil to be notarized; therefore, a lack of notarization is not grounds to contest a will.
Once new documentation is validated with the intention to replace the executor, the previous executor is removed. As any executor must receive when it is time to carry out their duties, this individual would need to obtain power of attorney from the probate court.
Please note that requirements vary by state and it is best to contact an attorney to ensure all the correct steps have been taken.
Contacting Your Attorney
To avoid the confusion that sometimes can be created by individuals who attempt to prepare their own will or codicil, it is always best to speak with a probate lawyer who is well versed on the probate law in your state. By taking the time to professionally create these documents, there is far less potential for misinterpretation by your heirs and remaining family members.
The Legacy Lawyers. would be pleased to answer any questions you have re: wills, executors, or other probate matters. Contact our office by calling (800) 840-1998 or complete the form to schedule a consultation with one of our experienced attorneys.
