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Beneficiaries may be able to alter who gets what

On Behalf of | Oct 15, 2021 | probate & estate administration | 0 comments

Sometimes will are contested. An individual may believe that the will of the deceased does not accurately reflect their true wishes, due to the undue influence of another or they lacked the capacity to properly express their true wishes. Often, this takes the form of a beneficiary bringing the challenge, in an attempt to alter the will’s terms. But there is another avenue that does not involve the confrontation of a formal challenge.

A meeting of the minds

The number of beneficiaries will vary from one probate case to the next. But if those beneficiaries, regardless of the number, all agree that some aspect of the will should be changed, it is possible they can make it happen. New Jersey Statute Section 3B:23-9 permits successors to the deceased’s estate to enter into a written contract that will modify how assets are distributed.

All of the beneficiaries or successors must agree to the change. If anyone who would be affected by the change does not agree, no contract can occur and the change will not move forward. But if there is agreement, beneficiaries can alter the interests, shares or amounts to which they are entitled. The statute permits such a contractual change both in probate cases where there is a last will and testament and those where there is not.

The executor or estate administrator is bound by the terms of the contract, if it is valid. They must administer the estate as if the new terms were the express wishes of the deceased. What the executor cannot do is violate their fiduciary duty in the probate process. If the contract would prevent them from paying inheritance taxes or satisfying debts to creditors, for instance, the executor does not have to comply with the change.