Does a Will Override a Trust After Death?

When it comes to estate planning, two of the most common tools are wills and trusts. While both can be used to distribute your assets after you pass away, they serve different purposes and operate in distinct ways. One question that often arises is whether a will can override a trust after death or vice versa. Let’s say you previously drafted a will and then decided to create a trust without explicitly replacing the will with the trust. Which takes precedence: the will or the trust?

In most cases, a trust takes precedence over a will when there is a conflict between the two documents but only for assets that are specifically held in the trust However, there are some nuances to consider. In this article, we’ll explore the interplay between wills and trusts and help you understand how they work together to ensure your final wishes are carried out.

The Role of Wills in Estate Planning

A will, also known as a last will and testament, is a legal document that outlines how you want your assets to be distributed after your death. It allows you to name beneficiaries for your probate assets (those solely owned by you) and appoint an executor to manage the distribution process. Wills can also be used to designate guardians for minor children and specify final arrangements.

However, wills have limitations. Assets distributed through a will must go through the probate process, which can be time-consuming, costly, and public. Additionally, wills only control assets that are part of your probate estate and do not supersede beneficiary designations on accounts like life insurance policies or retirement plans.

Understanding Trusts and Their Benefits

A trust is a legal arrangement in which a trustee holds and manages assets for the benefit of named beneficiaries. The person creating the trust, known as the grantor, can specify how and when the assets will be distributed.

Trusts offer several advantages over wills:

1. Avoiding probate: Assets held in a trust are not subject to the probate process, saving time and maintaining privacy.
2. Flexibility: Trusts can be customized to meet a wide range of goals, from providing for a special needs loved one to minimizing estate taxes.
3. Ongoing management: Trusts can provide continued asset management and distribution long after the grantor’s death.

There are several types of trusts, each with its own purpose and characteristics. The two main categories are revocable trusts, which can be modified or terminated by the grantor during their lifetime, and irrevocable trusts, which generally cannot be changed once established.

Wills vs. Trusts: Which Takes Precedence?

So, does a will override a trust? In most cases, the answer is no. When there’s a conflict between the provisions of a will and those of a valid trust agreement, the trust terms typically prevail for assets that are specifically held in the trust.

This is because assets properly titled in the name of a trust are no longer part of the grantor’s probate estate and are not subject to the terms of the will.

However, there are some exceptions and nuances to consider:

1. Pour-over wills: A pour-over will is designed to work in conjunction with a trust, directing any assets not already held in the trust to be “poured over” into it upon the grantor’s death.
2. Testamentary trusts: A testamentary trust is created within a will and only takes effect after the grantor’s death and the will’s admission to probate.

In both cases, the will and trust must be carefully drafted and coordinated to ensure they work together seamlessly.

Revocable Living Trusts and Wills

A revocable living trust is a popular estate planning tool that allows the grantor to retain control over the trust assets during their lifetime while avoiding probate upon death. When the grantor passes away, the living trust becomes irrevocable, and the assets are distributed according to the trust terms.

If the grantor also has a pour-over will, any assets not properly titled in the name of the trust will be transferred to it through the probate process. However, the trust terms will ultimately govern the distribution of all assets, including those “poured over” from the will.

Irrevocable Trusts and Wills

Irrevocable trusts, as the name suggests, cannot be easily modified or revoked once they are established. These trusts are often used for specific purposes, such as reducing estate taxes or protecting assets from creditors.

When an irrevocable trust is properly funded, the assets it holds are no longer considered part of the grantor’s estate and are not subject to the terms of the grantor’s will.

In rare cases where a conflict arises between the terms of an irrevocable trust and a will for assets held in such trust, the trust provisions will almost always prevail. This underscores the importance of proper trust drafting and funding to ensure your assets are distributed according to your wishes.

Resolving Conflicts Between Wills and Trusts

While well-drafted estate plans should minimize the potential for conflicts, disputes can still arise. When a conflict occurs between the provisions of a will and a trust, courts will generally seek to interpret and enforce the grantor’s intent.

Factors like the specific language used in the documents, the timing of their creation, and any evidence of the grantor’s wishes will be considered.

To avoid such conflicts, it’s crucial to work with an experienced estate planning attorney who can ensure your will and trust are properly drafted, coordinated, and updated as your circumstances change. Regular reviews of your estate plan can help identify and address any inconsistencies or potential issues before they become problematic.

Ensuring Your Estate Plan Works as Intended

Creating a comprehensive estate plan that incorporates both a will and a trust can provide the best of both worlds: the flexibility and control of a will combined with the privacy, probate avoidance, and ongoing management of a trust.

However, for your plan to work as intended, you need to:

1. Properly fund your trust by transferring assets to it during your lifetime or through a pour-over will.
2. Regularly review and update your estate planning documents to reflect changes in your family, finances, or goals.
3. Communicate your wishes and the existence of your trust to your loved ones to avoid confusion and potential disputes.
4. Seek the guidance of a knowledgeable estate planning attorney who can help you navigate the complexities of wills, trusts, and other planning tools.

At Bianchi Fasani Green Law, our dedicated team of estate planning attorneys has extensive experience crafting comprehensive plans tailored to each client’s unique needs and goals.

We understand the nuances of Florida law and can help you create a plan that ensures your wishes are carried out while minimizing the potential for conflict and confusion.

If you have questions about wills, trusts, or any aspect of estate planning, we invite you to contact our office to schedule a consultation. Together, we can develop a plan that protects your assets, provides for your loved ones, and gives you the peace of mind that comes with knowing your legacy is secure.