Does a Will Override a Trust?
Many people create a trust for their property as part of estate planning with the idea that it will help avoid the lengthy probate process for their heirs. They may also have a will drawn up at the same time or already had one in place before the trust was created. If you recently lost a family member who had both a will and a trust, you may wonder if the will overrides a trust.
The will and trust are separate documents for the same purpose to designate what you want to happen to your estate after death. They are instruments used in estate planning to manage real property and other assets. An estate planning attorney may recommend one or the other to transfer ownership of property upon the owner’s death.
What is a Will?
The last will and testament of a person is a legal document that defines what they want to happen to their property after they die. It is used to determine the care of minor children as well as disperse the assets owned by the decedent. It is a simple form of estate planning.
For a will to be valid, it must be signed by the person who owns the property being included. Most states have specific requirements to prove the validity of the will, such as two witnesses present when the estate owner signs the will.
A will is filed with the probate court and followed after the person passes to distribute assets according to their wishes. Probate is a legal proceeding where the court oversees the distribution of assets and payments of debts.
What is a Trust?
A trust is a living entity that is created by a person who owns the property. They transfer their property to the trust, which means they are no longer the owner. Instead, the trust is the owner of the property and a separate legal entity. The person is the trustee who will manage the trust during the grantor’s lifetime. The beneficiary receives the assets after the person dies or at an appointed time. Real and personal property can be held in a trust.
A living trust is one that is created while the person is alive. They designate who they want to be the beneficiaries, and it’s often created as part of an estate plan. The living trust’s assets are transferred after the grantor’s death unless designated otherwise. These assets can include money in bank accounts, retirement accounts, real property, and other tangible items owned by the deceased. A testamentary trust is one that is created after the person’s death to hold the assets for the beneficiary.
Trust property doesn’t go through probate court. They can often be transferred much more quickly and with less hassle. There are two broad categories for a living trust: revocable and irrevocable. Revocable trusts allow the trustee to make changes and even remove assets from the trust. An irrevocable trust prevents the trustee from making those changes. It also protects the assets from creditors. Both the revocable trust and irrevocable trust takes precedence over a will for the deceased individual’s property.
Which Has Precedence: Will or Trust?
If the person has both a will and a trust, the trust will supersede the will. If the two separate legal documents conflict, whatever assets have been placed in the trust will go to the designated beneficiary of the trust.
Any assets that aren’t included in the trust may be subject to the instructions of the will. The only exception is if the beneficiaries can prove that the decedent was in the process of transferring them to the trust when they died.
It’s quite common for the deceased person to have a trust and still own assets that they didn’t place in the trust. In these situations, the estate not included in the trust will need to go through probate. The heirs won’t receive the portion of the estate in probate until it has been completed.
Preventing Issues with Wills and Trusts
You can prevent problems with wills and trusts by making sure your beneficiary designations are up to date. This includes deeds to real property, bank accounts with Pay On Death (POD), retirement, and other accounts with POD beneficiaries.
It’s important to work with an estate attorney who can review all the legal documents as part of a comprehensive estate plan. They may advise you to create a new will if the current one conflicts with deeds, a trust, or other beneficiary designation. The lawyer can help ensure that your assets go where you intend for them to be distributed.
If you are concerned about property held in a trust, what happens to trust property, or other questions about estate planning, you can speak with legal experts who will help you determine what you need for your future beneficiaries.