Does a Living Trust supersede a Will

My parents created a living Trust back in 1998 making my brother the Trustee. After our father died 2 months ago my brother’s actions due to his alcoholism has made my mother concerned if he is trustworthy and capable enough to handle the duties that is required of the Trust. My mother wants to remove him from the Trust and appoint me as the Trustee seeing how I had cared for my father in his final days and was the one who upheld his medical aspects of the Trust. In my father’s Will he made my mother the executor with my brother as the next in line should my mother pass. Unfortunately we are unable to find the ‘Living Will’ paperwork to see what the TOS are because my father made my mother the Trustee in his Will, is that enough for the courts to take him off the Trust and reappoint me?

Asked on September 6, 2017 under Estate Planning, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, a will does not supercede a trust: the property in the trust belongs to the trust, not to the person making the will, and so the will has no power over the trust or trustee. Now, there is a key distinction between irrevocable trusts which--as the term "irrevocable" implies--may *never* be modified or changed--and "revocable" trusts, which may be modified or revoked entirely by the person making them while that person is alive, but even so, as long as a living trust has not somehow been invalidated or revoked (if a revocable trust), the will has no power over it. So  making your mother trustee in the will did not affect the trust; and if your father has passed, it is too late for him to modify or revoke his trust, even if it would have revoable otherwise. Based on what you write, it appears that at this point, the trust will stand as it.

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