Within estate planning, Trusts and Wills have important yet sometimes conflicting roles to play when it comes to managing an individual’s assets in the event of incapacitation or death. During the process of execution of a Will or Trust, several questions can come up relating to which document supersedes the other and how this may affect underlying assets.
Does a Will override a Trust? A Will and a Trust are separate legal documents that often are set up to attempt to accomplish the same goal and often may work together during an estate plan. When these two documents clash, it can be confusing for a layperson to know whether a will may void a Trust. A Living Trust generally supersedes a Will, but a Will may (in some instances), override specific types of Trusts. Trusts usually come in two forms: irrevocable (not able to be changed or revoked) and revocable (these are able to be altered or done away with as needed).
Depending on where the will was set up (in California, for instance), a Will can be revoked by another Will that intentionally and clearly revokes the previous Will. Wills can also be destroyed by physical act and thus invalidated by the individual who created the Will (the Grantor). Be sure to visit our guide on how to estate plan for your home if you have any further questions on Trusts and Wills. Also, be sure to check out our estate planning checklist for a wealth of more information on estate planning.
You may be asking yourself “does a Trust supersede a Will”? Another important question is if beneficiaries can supersede a trust. Typically, when setting up insurance policies (be they life insurance, home insurance, or many other forms), there is a requirement to designate a beneficiary (or two) to ensure if a life-altering situation occurs, your assets or the value of the insurance policy itself is paid out to the beneficiaries.
Beneficiary designations override Wills so in the event that the Will and your designations clash, beneficiaries will receive what is stipulated in the insurance policy or other agreement. This is why it is extremely important to think through choosing a beneficiary and examine all of your estate planning documents and previously written Wills and Testaments to ensure you are making a sound decision for your estate’s future.
Wills are, in many instances, flexible legal documents with the ability to be changed and adapted at the grantor’s discretion. Irrevocable Trusts, however, are not able to be changed or modified without the beneficiary’s direct permission. Now you know which legal document can effect change on the other during the irrevocable Trust vs Will debate. If you still have questions, visit our list of common terms used in Wills and Trusts.
There is a clear step-by-step procedure to revoking a Trust in a Will. First, you must remove all assets that have been transferred into it. Second, you’ll need to accurately fill out a revocation form, stating the grantor’s desire to dissolve the Trust. The third and final step is for the grantor to sign the official revocation declaration, and, in many cases, filed with a local probate.
Avoiding Probate can save your family both time and money. However, if your Living Trust is not set up properly and your assets have not been correctly transferred to it, your good intentions may be in vain. Properly funding a trust is what ensures your assets are protected and your plan holds up. LegalShield can help you properly create a Living Trust today.
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