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Do your loved one’s will and trust contradict each other?

On Behalf of | Dec 5, 2019 | Estate Planning |

You may have felt relieved to know that your parent prepared an estate plan before passing away. An estate plan can relieve a family of much confusion and tension because it clarifies the goals and wishes of the deceased. This may reduce or eliminate the chances of family members arguing over the distribution of property or even the final resting place of the deceased.

You may have been surprised and delighted to learn that your parent not only drafted a will but also formed a revocable trust. However, on closer examination, you and the other heirs discovered that the two documents contradict each other. Now, instead of having a smooth and stress-free probate, you and your family must determine which document to follow.

Which document rules?

Confusion between a will and a trust often results when the creator of these documents does not review or revise them frequently. Designations may become outdated, or assets may no longer exist. If your parent revised his or her will but did not update the trust, or vice versa, you and your family may have questions about how to proceed with probate.

The first thing to understand is that the trust pertains only to those assets that your parent funded to it. Any assets in the trust do not legally belong to your loved one’s estate. Instead, they belong to the trust. Therefore, they do not go through probate as do the assets one leaves in a will. However, what happens if your parent funded a certain asset to a trust but also left the same asset to a different heir in the will?

Will vs. trust

Because the will only has authority over assets the estate owns, it does not have authority over assets your parent funded to the trust. Therefore, in general, the trust designation overrides any bequest in a will. For example, your parent may have funded the house to the trust and instructed the trustee that it would become yours. Even if your parent left the house to someone else in a will, the trust is now the legal owner of the house, so the will cannot say who gets the property.

Of course, you and the other heirs may have questions about the circumstances behind changes in a will or assets funded to a trust, and these questions can lead to disputes. If such matters cannot come to a resolution, you may find it necessary to seek the ruling of the court. Before taking this step, you may wish to obtain an evaluation of your case by discussing it with a skilled Texas attorney.