Living Trusts and Will Cover Same Property

Living Trusts and Will Cover Same Property

If the same property is left in a will and a trust which one does the probate court go by?


Usually, but not always, when a will and living trust are used together the will is a special type of will called a pour over will. Such a will pours over or transfers to the revocable living trust all assets left in your estate when you die. If this is the type of will, and depending on how the asset addressed in both is worded, the will might just pour it into the trust and that may solve any problem. If that is not the issue then if the property is owned by the estate of the decedent (i.e., its a probate asset) then the will would govern the distribution of that asset. If the will have a specific bequest in it then the property would likely be governed by that provision of the will (assuming the pour over above does not intervene). If the property involved was owned by the trust, then the will would not govern the property, rather the trust should. So you need to start by reviewing the legal structure of each document and the exact legal title (ownership) of the asset. If the property involved was real estate, for example, you'd have to look at the deed to see how it was owned (e.g., by the decedent so that it is a probate asset governed by the will, or by the revocable living trust in which case it is a non probate asset governed by the trust). Since this can be technical, and there could be issues as to fiduciary fees, estate taxes, title and property insurance, etc., consult with a probate attorney.

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