Having a will and a trust can be a great way to plan for your estate and protect your assets. When prepared correctly, these separate legal devices can work in concert as part of a smart estate planning strategy. However, when the two documents are prepared independently of each other, and at different times, there can be serious contradictions. In the matter of wills v. trusts, it’s vital to know what to do if these documents conflict.
A California will can be used for several purposes, including directing specific assets and property to heirs, leaving final instructions regarding your estate, and naming preferred guardians for your children. Once your will is made, unless you make amendments, it will be your final word with respect to the property and directives contained in the document. When you pass away, your estate will go through probate before it is distributed to your heirs according to the terms of your will.
There are different types of California trusts. When a trust grantor is alive, he or she can create a living trust. The trust can hold property and assets and will have a trustee who can disburse payments for the benefit of named beneficiaries. The grantor can be the trustee as well as a beneficiary. When the grantor dies, the property in the trust remains the legal property of the trust, rather than becoming part of the grantor’s probate estate. Accordingly, since the trust property is not part of the probate estate, it will remain in the trust according to its terms and bypass probate.
Wills and trust are most likely to conflict when an asset is left to an heir in a will, but has also been placed in a trust for the benefit of named beneficiaries. The problem will most likely arise when the heir goes to claim the property, and finds it’s not part of the probate estate.
When an asset is placed in a trust, it becomes the legal property of the trust. Therefore, if someone were to pass away after putting an asset in a trust, and that same asset was also left to an heir in a will, the probate court would probably not have any authority to include it as part of the probate estate. However, it’s not enough to only mention an asset in a trust document. The asset will only be part of the trust if it was already transferred into the trust body at the time the decedent passed away. Under these circumstances, if the un-transferred property was still owned by the decedent, it would be considered to be part of the probate estate.
The best way to ensure that your estate planning documents perform as intended is by working with an experienced California estate planning attorney. Your counsel can assist you in preparing legally accurate documents that arrange your assets in a manner that meets your needs and honor your wishes.
At the Law Offices of Alice A. Salvo, we have California estate planning experience and can help you plan for the future. Please contact us to schedule a free consultation today so we can help you explore your options and start your solution.