ownership conflict between will and trust

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ownership conflict between will and trust

I am the trustee of an irrevocable trust which owns a property. The will gives my
brother the property less 75,000 for me. It is my understanding that the house
cannot be sold without my permission. Can my brother refinance the house and
take out maximum equity without my permission?

Asked on September 14, 2019 under Estate Planning, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

If the trust owns the property and was set up prior to and not by the will, then the will has NO power over the property: the property is not part of the estate because it was not owned by the decedent, but rather by the trust, and a person's will cannot dispose of property not owned by him but rather by another (including a trust or, for that matter, LLC or corporation). As trustee, your obligation is only to follow the directions or instructions in the trust for what to do with property--you don't have to follow the will.


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