Does A Will Override A Trust?

If you’re looking to instruct your heirs on how your assets are to be distributed after your passing, then a will is a fine choice. However, wills are not the only type of legal document in estate planning. In fact, trusts are just as popular in Florida as they’re THE best way to manage assets before and after your death.

But does a will override a trust? And more importantly, does one legal entity supersede the other? 

To get to the bottom of how wills and trusts interact with one another, we first have to take a detailed look at both in isolation. 

What Is A Will?

A will is a legal document that dictates how your assets will be distributed upon your death. It establishes who takes possession of your belongings, investments, and cash, and also provides instructions on paying any remaining debts or obligations. 

If you leave a will, your estate will be distributed according to your instructions. The person in charge of the distribution process is referred to as a personal representative, who is, of course, assigned by you. 

Without a will, on the other hand, the probate court will distribute your assets per Florida intestacy laws. 

Generally speaking, the will may also have to go through probate court in charge of overseeing the process of distributing your assets and settling your affairs. In most cases, probate is strictly a formality, as the court will only have to make sure the will is legal and that the personal representative has the means to distribute your assets and pay off the estate’s debts. 

Wills are a neat option for leaving assets to someone in their entirety, like if you want to leave your cash to a single heir. They’re also useful for smaller and midsize estates because the inevitable probate process will be relatively straightforward. 

What Is A Trust?

A legal entity, trusts are created to hold and manage personal property. Every trust must have the following elements:

• Contributor - person who creates and contributes assets to the trust
• Assets - real property, cash, and other assets contained in the trust
• Trustee - person managing the trust assets
• Beneficiary - individuals who receive the trust assets

The way trusts work is simple - upon creating the trust, you place your assets in its name, meaning the assets no longer belong to you but to the trust itself. Since the trust is a legal entity, it’s capable of owning assets, making distributions, and paying taxes. 

During the creation of the trust, you must establish the terms. This means naming beneficiaries and trustees, along with outlining the instructions on which assets the beneficiaries will receive, when, and how. For example, you can instruct the trustee to distribute the assets to all your children equally or only allow them to receive the assets when they graduate from college, and so on. 

Trusts are recommended for estates large enough to trigger costly tax concerns. Similarly, they’re also beneficial if your main goal is to avoid probate in which creditors and heirs may contest your estate. 

What Happens If The Will Conflicts With The Trust?

Back to our original question - does a will override a trust? If there are any conflicts between the two, the instructions in the trust will prevail because the assets in the trust technically belong to the trust itself, as opposed to belonging to your estate. 

One of the circumstances in which the will can conflict with the terms of the trust is when it provides instructions that conflict with an existing trust. For instance, the will may leave the family home to the decedent’s children, while at the same time, the same home is in the property of the trust.

Does a will override the trust in this case?

No, as the will can’t distribute the property held in a trust because the assets belong to the trust and are not part of the estate. As such, they are not subject to the will. 

So in this scenario, your assets will be distributed according to the will’s instructions while the assets of the trust will be distributed in accordance with the trust terms. 

Another common conflict is a situation where a will provides conflicting instructions with the terms of a trust that hasn’t yet been created or hasn’t received the assets. For example, the will may distribute the investment among your children while one part of the will states your investments should be placed into a trust. 

Since the will doesn’t clash with an existing trust, the internal contradiction will be resolved as per Florida intestacy laws. 

It’s worth stressing that you are within your legal rights to place your assets in an already existing trust or to instruct the personal representative to create a testamentary trust that will end up holding your assets. Regardless of the path you choose, since the assets belong to your estate, the will itself will govern the distribution of assets. Thus, trust is not a problem regarding the internal contradictions in the will - the language of the terms is.

If this happens, the personal representative and the court will have to find a solution to the conflict in accordance with Florida laws. 

The best way to avoid any estate planning conflicts is to have an estate planning attorney help you create and manage these documents. 

Craft A Foolproof Estate Plan At The Law Offices Of Mary E. King

Now that you know the answer to the question of does a will override a trust and are more familiar with the inner workings of each estate planning document, you can start taking action. Estate planning can be tricky, especially for larger estates, so if you’re planning on using both a will and trusts, you must see to it that no documents in the estate plan end up contradicting each other. 

The easiest way to ensure that no legal issues arise in the future is to work with expert estate planning attorneys at the Law Offices of Mary E. King. During our twenty years in the field, creating bulletproof estate plans has become like second nature. 

We’re also willing to go the extra mile for you by helping you minimize your estate taxes and provide you with an opportunity to preserve your estate when you’re no longer around. 

Start planning for the future - call 941-906-7585 or fill out our contact form.

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.