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Saturday, October 30, 2021

Can the executors named in a will of a living person be removed without being notified?

A reader has posted a question that I'd like to talk about today. This is a topic I've run into hundreds of times so I think it deserves a bit of attention. 

Here is the question: "Can the assigned Co-Executors of a Will/Estate (of their living elderly mother) be removed by another family member without notifying the current executors?"

There is more than one issue raised here, but what I want to address first is the idea that someone named as an executor in the will of a living person has some rights. Basically, they don't have any at all. The named executors do not have the right to control or even touch the estate of a testator who is alive. If the testator has diminished mental capacity, the executors still don't have any rights; the right to look after the living testator's estate belongs to an attorney named under an Enduring Power of Attorney.

The particular right that this reader wants to know about is the right to be notified of a change of executors. It makes sense to tell your previous executor that he or she won't be required to fill that role, just so that there is no confusion after your death about who is supposed to step up. But this in no way creates any sort of right in the executor to be notified.

I was told by a client last week that she does not trust her named executor and thinks he will do a sloppy, lazy job. Obviously I advised her to name a different one. She does have other viable options. But she won't, because she has already told him he is the executor and she doesn't want to offend him. Perhaps that is exactly what is happening with the reader who sent me the question.

The opposite side of the coin of having rights is having obligations. This means that a person named as executor in the will of a living testator does not have obligations to the estate. I have a file right now in which the family members of a recently deceased woman are furious at their brother who was named executor years ago in the woman's will, because he didn't keep them apprised of her financial situation while she was living. Not being named in a POA, he was not responsible for the mother's financial affairs. She managed them herself, Even if he had been aware of them, the fact that he was named as an executor did not impose any obligation on him to anyone to report on them while the mother was alive. One thing simply has nothing to do with the other.

An exception to that general rule is that if someone is acting under a POA for a living person, and a named executor is holding onto the living person's will, that executor is obligated to give the will to the acting POA.

The non-existent rights of named executors seem to be widely misunderstood, but the logic behind this is simple. A will takes effect after a person dies. Until then, the executor appointment means nothing.

The second issue raised in this question is whether a third party can remove an executor from a living person's will. The simple answer is no. Nobody can legally and validly change a testator's will except for the testator. The writer of the question is suggesting either undue influence or outright fraud. Each of those topics deserves a blog post of its own and in fact have been discussed on this blog many times. 



6 comments:

  1. I wonder if the ‘third party’ in the question is currently the POA? Even so, the one thing a POA cannot do is change the person’s will!

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    Replies
    1. You're right, Jenn, a person acting under a POA is not allowed to change a person's will. Nor are they allowed to change beneficiary designations such as on life insurance policies or RRSPs.

      Lynne

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  2. The last comment you made above about changing beneficiary designations surprises me. I thought the idea of the POA (specifically the financial POA) was to make financial decisions for the incapacitated individual in a fiduciary manner? The beneficiary could have died or the principal could have a falling out with the beneficiary and the POA has no recource?
    Also what if the principal did not complete a beneficiary designation. Can the POA designated one?

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  3. I should hope not! A POA cannot change/designate a beneficiary, period.

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  4. A POA cannot change/designate a beneficiary, period.

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  5. In my case, the POA (my sister-in-law) w/ consent from her husband, did change the life ins. policy. My name was removed, while mom at 90 was with dementia. I had/have no recourse to correct it, as it would cost thousands to do that. I have accepted that.

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