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What happens when a will and a revocable trust conflict?



A:

A revocable trust, by nature, is a living trust established during the life of the grantor; by definition, it can be changed during the lifetime of the grantor. Since the trust becomes operative before the will takes effect at death, the revocable trust takes precedence over the will when there is a conflict between the trust document and the will.

Although the revocable trust supersedes the will, the revocable trust only controls assets that have been placed into the trust. If a revocable trust is formed, but assets are not moved into the trust, the trust provisions have no effect on the intended trust assets at death.

A Trust Is a Separate Entity

From a legal standpoint, a trust is a separate entity from an individual. When the grantor of a revocable trust passes away, the assets in the trust do not enter into the probate process along with the assets owned personally by the deceased.

The purpose of the probate process is to ensure that assets owned personally by a deceased individual are disseminated in accordance with the will, but assets in the revocable trust are not considered the personal property of the deceased. Therefore, the death of the grantor simply activates the provisions in the trust agreement regarding how the assets are to be distributed to the beneficiaries of the trust.

An attorney or estate planner should know that provisions in a will do not control assets placed into a living trust, but there are times that individuals create their own wills and expect that everything follows what is outlined in the will. It is important to remember that a revocable trust is a separate entity and does not follow the provisions of an individual will at death.



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