Trust and Will
Halt | February 25, 2022 | 0 Comments

Does A Will Supersede a Trust?

Estate planning is challenging to navigate on its own especially when both wills and trusts exist. When this happens, the question becomes: which document supersedes the other, and under what circumstances?

Typically, trusts supersede wills because assets in a trust belong to that trust, whereas assets included in wills still belong to you.

Below, we cover the differences between the two and what you need to know about asset distribution.

What Is A Trust?

What Is A Trust

There are two primary types of trusts: testamentary trusts and living trusts. The main difference between the two is that testamentary trusts do not come into effect until after your death while living trusts take effect during your lifetime.

Here are more details on each:

  • Testamentary Trusts – Trusts created by the provisions of your will that come into effect after your death; the conditions in the trust match those in your will
  • Living Trusts – Trusts created during your lifetime, ownership of specific assets can be transferred from whoever created the trust (called the grantor) to the living trust itself.

A subtype of living trusts is revocable living trusts. With these types of trusts, the grantor can change the terms of the trust during their lifetime.

Trusts Vs. Wills – Which Supersedes The Other?

4 Things You Need to Know About Preparing Wills and Estate Planning

Trusts are separate legal entities. This means that the assets whose ownership you transfer to that trust are no longer yours. Even if your will outlines how you want those assets distributed, the instructions in the trust take precedence.

When you transfer ownership of assets to a trust, you no longer have a say in how those assets are distributed unless you change the terms of the trust. As such, you can not dictate how the assets are handled in your will because they are technically no longer your assets.

Provisions on asset distribution in a will are considered invalid if they conflict with those in a trust.

Trust Vs. Wills – An Example

Here is a quick example: John Doe creates a trust for his child, Jane Doe. He transfers ownership of his vintage car collection to the trust and sets provisions that the cars be given to Jane upon his death.

However, he later creates a will that splits the vintage car collection equally between Jane, his nieces, and nephews.

The conflicting trust and will are revealed upon his death. As he transferred ownership of the cars to the trust, and the trust is a separate legal entity from John, the trust supersedes the will. As such, the entirety of the vintage car collection is given to Jane.

Preventing Conflict Between Trusts And Wills

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Though trusts generally supersede wills, the law is not always clear. Figuring out which provisions take precedence can be costly, time-consuming, and emotionally exhausting.

Regularly reviewing your trust and will for conflicting provisions is a simple and effective way to avoid this. If you want to give away an asset in your will, but have transferred ownership of that asset to a trust, consult with a trusts and estates attorney about what options may be open to you.

Above all, the goal of both trusts and wills are to distribute your property according to your wishes after death. Assets should be clearly divided to accomplish this and there should be no conflicting provisions or instructions.

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