Does a Living Trust supersede a Will

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 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.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption