Legal Question in Wills and Trusts in California
living trust vs will
My father & mother have a living trust and father had a will. My father has passed on. Does a living trust ''trump'' a will? Can a living trust be disolved and can my mother have her own will which will supercede the old one? She really doesn't know anything about it and neither do I. She is 85 and we need to get this straightened out. I would hate to have everything go into probate. Thank you!
4 Answers from Attorneys
Re: living trust vs will
The will controls 'probate assets' and the trust controls 'trust assets'. Trust assets are those titled in the name of the trust (frequently listed on an attached schedule). Generally, probate assets are those which are NOT held in: (i) trust, (ii) joint tenancy and (iii) pay-on-death accounts.
Moreover, most wills prepared with trusts are 'pour-over' wills, which means that all assets are transferred to the trust (or 'poured-over' into the trust).
If the probate assets are less than $100,000, then you can avoid a formal probate and use the simple estate administration act.
Take a look a my web site and it may give you a better idea of how these things are handled.
You and/or your mother should consider consulting a local attorney. Death of a spouse is a good time to review an estate plan.
Good luck.
Re: living trust vs will
The question is whether all property has been effectively transferred to the trustee(s) of the Living Trust. If so, there is no estate to be affected by a will. If there is property outside the trust, it can only be disposed of by will.
You should read my book on the subject. Short and in lay terms, written in plain simple English. You can access this on one of my websites, www.yourlivinglegacy.info.
Re: living trust vs will
It will depend on how the trust was drafted, and what assets, if any, have been given to the trustee to be held pursuant to the terms of the trust.
The will distributes assets that are not held by the trustee.
Basically, your mother should consult with a local attorney to review the will and trust along with a list of any assets that parents have such as real property, etc.
Caleb
Re: living trust vs will
The trust and the will are generally complimentary. The will itself does not avoid probate, it is the trust that keeps the estate out of the Probate Court. As long as her assets are attributed to the trust and/or will and the will references the trust, odds are, she's OK.
We could do a free review of the trust and will for you. Please feel free to learn a little more about Trusts, Wills and Estate Law on our firms's site at No-Probate.com.
We can be reached at the phone/address/email listed on LawGuru or throug our firm's site.
Regards,
Scott Linden
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