If there is a Will dated 5 years ago and a Trust established 3 years ago, which one is used in case of death?

UPDATED: Oct 1, 2022

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If there is a Will dated 5 years ago and a Trust established 3 years ago, which one is used in case of death?

My father has a Will dated 5 years ago leaving the house to his stepchildren. He also established a Trust 2 years later which owns the house now. There terms of the Trust say that just a sum of money goes to the stepchildren. When he dies, which document would be used?

Asked on March 31, 2018 under Estate Planning, Iowa


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If the house was put into the trust, it is now part of the trust; a will can be superceded by later events, like selling property or, as is this case, putting property into a trust. The will only controls as to what the deceased actually owned--and not as part of a trust, since a trust is a separate legal entity from the deceased--at the time he passes away. The will controls how his non-trust assets, money and property are distributed; the trust (e.g. the documents and instructions creating it) controls what happens to any assets and property, including the house, that are part of it.

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