It’s impossible to say whether a will overrides a trust without taking a closer look at each document. For example, if a will was executed after a trust, there’s a chance it could override the trust if the will could be regarded as a valid amendment or revocation of a trust.
Put simply, when the terms of a decedent’s will conflict with the terms of a decedent’s trust, there isn’t a hard-and-fast rule determining which document takes precedence.
For example, say a decedent’s will leaves his home to his children, but his trust leaves his home to his surviving spouse. If it were to come to light that the spouse exerted undue influence on the decedent to create a trust amendment devising his home to her, the executor of his estate or his children could challenge the validity of the trust amendment in court. If they are successful in having it invalidated, the home would revert to the decedent’s estate to be distributed to his children as outlined in his will.
Although it is rare for wills and trusts prepared by qualified estate planning attorneys to conflict with one another, oversights and errors do happen. There is even higher potential for blunders when wills and trusts are prepared using certain DIY tools without the aid of qualified professionals. Luckily, recourse is usually available when a will is at odds with a trust.
It’s important to remember that wills and trusts fall under a complex area of the law. Determining which document overrides the other is rarely straightforward. There may be a host of factors at play, only a few of which will be discussed in this article.
Can You Have a Will and a Trust?
A comprehensive estate plan usually consists of both a will and a trust. To put it simply, they are companion documents. Therefore, not only is having a will and trust permitted; it is recommended.
How Does a Will and Trust Work Together?
A well-crafted will and trust work seamlessly with each other to provide clear instructions surrounding how and to whom a decedent’s assets should be distributed after they die. In essence, they leave no room for confusion, helping ensure the decedent’s true final intentions are upheld.
Sometimes, when one document falls short, the other can act as a safety net. For example, a pour-over will can be created alongside a living trust to pour over any assets remaining in an estate that are not being disposed of by the decedent’s will to the decedent’s trust upon their death. A typical pour-over will states that any property in the decedent’s estate should be distributed to the acting trustee of the decedent’s trust so those assets can be distributed as outlined in the trust instrument. It’s worth noting that, unlike a trust, a pour-over will is subject to probate.
Also, because wills and trusts operate differently from one another, they can serve different purposes. Trusts, for example, tend to allow for more flexible and longer-term distributions than wills.
When a trust and will work well together, trust and estate administration may be streamlined. However, when they conflict, administration may be riddled with delays and disputes. To keep administration on track when a trust and will are in conflict, working with a probate attorney is crucial.
Incompatibilities Between Wills and Trusts
When the terms of a will are incongruent with the terms of a trust, which document takes precedence depends on a number of factors.
When Does a Will Supersede a Trust?
A will may supersede a trust if the will can be regarded as amending or revoking the trust, or if a trust is deemed invalid. That said, remember that these are not the only factors at play. To know for certain whether a will superseded a trust, consulting a knowledgeable probate attorney is recommended.
At the same time, it’s important to understand that assets in a decedent’s trust are owned by the trust, which is a separate legal entity from the decedent and their estate. Therefore, for trust assets to revert to an estate, where they will be distributed according to the will or intestate succession laws, compelling evidence may need to be presented to the court to demonstrate why the trust is problematic.
Will Amends or Revokes Trust
A will could be regarded as amending or revoking a trust if it was executed after the trust and includes language — whether implied or express — indicating the decedent’s intent to amend or revoke their trust.
Perhaps a decedent’s trust states that their home, classified as their separate property, should pass to their surviving spouse. The spouse, however, dies shortly after the trust is executed. Later, the decedent executes a will stating that their home should pass to their children. Although the will does not explicitly amend the trust provision concerning the home, its language might still be interpreted as doing so, given that the will was executed after the trust and the original trust provision can no longer be carried out. If it can be demonstrated that the decedent intended for their will to amend their trust, their will could supersede their trust.
Trust Is Deemed Invalid
A trust may be deemed invalid for many reasons. Perhaps the decedent previously revoked the trust. Perhaps the decedent amended their trust when they lacked the necessary capacity to do so. Perhaps the trust is a forgery. If there is evidence to show a trust meets one or more of the grounds for contesting a trust, chances are that the document is invalid.
When you contest a trust and win, trust assets may transfer to the decedent’s estate if no prior version of the trust exists that is valid.
When Does a Trust Supersede a Will?
When a trust is valid, proper and unambiguous, it almost always supersedes a will. The few instances it may not supersede a will were covered in the previous section.
Steps to Take When a Will Contradicts a Trust
When a will and trust conflict, it can leave beneficiaries in a state of uncertainty and delay. However, prompt and decisive action can help resolve these inconsistencies efficiently, allowing the administration process to progress smoothly and with minimal setbacks.
1. Consult with a Trust and Will Dispute Attorney
When a will contradicts a trust, there’s not always a straightforward solution. This is why you need an experienced trust and will dispute attorney in your corner.
A trust and will dispute attorney can examine the trust and will at issue, as well as any external evidence you may have, to determine how the conflict can be resolved.
2. Consider a Settlement
If a will and trust conflict, and there is a dispute as to which document takes precedence, your attorney may suggest that you try reaching a resolution through mediation, or negotiations between the parties that are held outside of court and presided over by a neutral third-party mediator. If a settlement can be reached through this process, you may save considerable time and money.
That having been said, settlement is only possible if all the parties to the dispute are amenable to resolving the dispute through mediation.
3. Find an Appropriate Legal Remedy
If you are not open to mediation or are not yet ready to settle, discuss with your attorney whether it would be appropriate for you to seek any of the following legal remedies.
Petition for Instructions
If there are ambiguities in a will or trust, or if a will and trust conflict with each other, the executor or trustee can file what is known as a petition for instructions for guidance from the court.
It is never a good idea for executors and trustees to try to interpret ambiguities themselves, regardless of whether they think they know the decedent’s intent. If they were to interpret ambiguities themselves, beneficiaries who are adversely affected by their interpretation could accuse them of breaching their duty of impartiality.
850 Petition
If there is clear and convincing evidence to show a decedent intended for an estate asset to be distributed as part of their trust, or vice versa, an 850 petition could be filed to seek the expedited transfer of that asset into or out of an estate or trust. In some instances, an 850 petition can help litigants avoid a formal probate.
Although an 850 petition can quickly resolve property disputes, it will only be granted if there is strong evidence to suggest an asset is in the wrong place.
Judicial Reformation
In a probate context, judicial reformation refers to a court modifying a trust or will to reflect the decedent’s intent when ambiguities or errors obfuscate it. The court typically has more leeway when modifying a trust than it has when modifying a will. When it comes to wills, the court can only correct mistakes.
Keep in mind that judicial reformation is generally only available in narrow circumstances, so it is best to consult with an attorney to determine whether judicial reformation is an option.
Trust or Will Contest
If an interested party suspects a decedent’s will or trust to be invalid, they can contest the will or trust to have the document invalidated.
If a will is successfully invalidated, estate assets generally will be distributed according to a prior valid version of the will, or, if one doesn’t exist, according to intestate succession laws. If a trust is successfully invalidated, trust assets generally will be distributed according to a prior valid version of the trust, or, if one doesn’t exist, according to the terms of the will or intestate succession laws.
Remember, compelling evidence is needed to contest a will or trust.
4. File a Petition with the Probate Court
To initiate your lawsuit, you will need to file a petition with the probate court, preferably with help from your attorney. In your petition, you will need to list your claims, arguments in support of your claims and the legal remedies you are seeking.
Although it is not required for you to have evidence at this stage of the process, if you do have relevant evidence, it would be advisable for you to mention it in your petition and attach it. If your petition is strong, it may motivate the opposing party to settle on your terms.
5. Attend Court Proceedings with your Attorney
On the date of your court proceeding, make sure to arrive on time to the courthouse you’ve been assigned. Your attorney will need to accompany you.
Will and Trust FAQs
Navigating contradictions in wills and trusts can be challenging. Explore our frequently asked questions section below for more detailed guidance.
Does a bank beneficiary override a will?
Yes, the designated beneficiary on a bank account does generally override a will.
That said, deceased persons’ bank accounts don’t always have beneficiaries. The only bank accounts that have them are ones that had been converted to Totten trusts by their owners.
Keep in mind that if a beneficiary designation on a bank account is invalid, they can be contested. Suppose evidence suggests that a beneficiary unduly influenced the decedent to designate them as a beneficiary. This would be a valid reason for contesting the beneficiary designation.
Does a trust override a beneficiary on a bank account?
While a trust doesn’t usually override a beneficiary on a bank account, it could be argued the terms of the trust should take precedence over the beneficiary designation if the trust was executed after the beneficiary designation and calls for a contrary distribution of the bank account.
Also, account owners do sometimes designate their trust as a beneficiary or joint owner of their bank account. If they do, trustees can claim the remaining contents of the bank account for the trust and distribute them to beneficiaries according to the trust’s terms once the account owner dies.
Does a life estate override a will?
If a life estate was established by adding a life tenant to a property deed, the tenant is entitled to use and enjoy the property for their lifetime. Once they die, the property will pass to the remainder beneficiary the original owner of the property designated to inherit it. In this circumstance, the original owner’s will cannot take away the life estate holder’s rights, which already had been granted to the life estate holder during the owner’s lifetime
Does a new will override an old will?
Yes, a new will can override an old will, given the new will is valid and properly revokes the prior will, either by expressly revoking all prior wills or by disposing of the decedent’s property in a manner that is inconsistent with the decedent’s prior will.
That said, it is best practice for testators to include a statement in their new will expressly revoking all prior wills. For added protection, testators also may wish to destroy all prior wills.
Does a new trust override an old trust?
Yes, a new trust can override an old trust, given the new trust is valid and meets the requirements for revocation of the prior trust.
The methods for revocation will typically be laid out in the original trust. If they are not, California Probate Code section 15401 states that a trust can be revoked by delivering a written instrument revoking the prior trust to the trustee.
Does a beneficiary override a will?
A beneficiary does not override a will. While a beneficiary may have the right to contest a will, they can only do so if the will meets one or more of the established grounds for contesting a will.
A beneficiary successfully contesting a will would have the effect of the beneficiary overriding the will, but they would still be subject to the terms of prior valid wills or intestate succession laws (if no prior wills exist). In other words, the beneficiary overriding the will would not result in assets being distributed according to their preferences.
Does a beneficiary override a trust?
A beneficiary does not override a trust. That said, a beneficiary does have the right to contest a trust so long as the trust meets one or more of the grounds for contesting the trust.
Although a beneficiary successfully contesting a trust could be equated to the beneficiary overriding the trust, the beneficiary will not have any control over how trust assets are distributed. Instead, this will be determined either by a prior valid version of the trust, the decedent’s will or intestate succession laws.
Does joint tenancy override a will?
Yes, joint tenancy generally overrides a will, since the death of a joint tenant results in the surviving joint tenants assuming automatic ownership of the deceased tenant’s stake in the property.
Because a decedent loses their ownership interest in a property held in joint tenancy once they die, their will generally cannot override a joint tenancy deed. In other words, their estate has no claim to the property.
Does joint tenancy override a trust?
Yes, joint tenancy generally overrides a trust. However, if a property held in joint tenancy is transferred to a trust, the joint tenancy is automatically eliminated.
Does a power of attorney override a will?
No, a power of attorney cannot override a will because a power of attorney automatically expires upon the principal’s death. Given that a will doesn’t take effect until death, there is no circumstance under which the two documents could contradict each other.
Does a deed override a will?
While a deed does not necessarily “override” a will, certain deeds can serve as mechanisms to bypass probate.
For example, a transfer-on-death deed (TOD) is a special type of deed that permits a property owner to designate who receives their real estate upon their death. The deed does not transfer ownership during life, but becomes immediately effective upon death, similar to a TOD beneficiary designation on a bank account.
Does marriage override a trust?
Yes and no. A spouse cannot dispose of more than 50% of their community property through their trust. If they do, marriage could, in a sense, override their trust, allowing their spouse to reclaim their rightful share of the community property.
It’s worth mentioning that this rule may not apply to all states. California is what is known as a community property state, which means any property acquired during marriage by either spouse, with some exceptions, belongs equally to both spouses. The only instance in which a spouse may not be entitled to 50% of the community property is if they waived their community property rights via a legally enforceable prenuptial or postnuptial agreement.
Does marriage override a will?
Yes and no. In community property states like California, a spouse is only entitled to dispose of their 50% share of the community property in their will. If they dispose of more than that, their marriage could override their will, so to speak. In other words, community property laws may allow the surviving spouse to claim their rightful share of the community property from the estate.
That said, if a spouse signed a prenuptial or postnuptial agreement waiving their community property rights, a will could, in a sense, override marriage.
Does a will supersede beneficiary designations?
In most cases, a will does not supersede beneficiary designations. Wills generally can’t exercise any control over assets with beneficiary designations, such as life insurance policies, bank accounts and retirement accounts, since these assets can be claimed by the beneficiaries on the account immediately after the asset owner’s death.
Only if a beneficiary designation is successfully contested might it be possible for a will to supersede it.
Still have questions about inconsistencies in a will or trust?
It can be a huge disappointment when your inheritance is delayed because a decedent’s will conflicts with their trust, or vice versa. Fortunately, even in a complex situation such as this, our skilled team of probate attorneys is adept at finding effective resolutions
Let our skilled attorneys guide you in finding a resolution tailored to your needs. As a firm specializing exclusively in probate litigation and administration, we excel at handling even the most intricate disputes. Get in touch today to discover how we can help protect your inheritance and bring clarity to your situation.
