Legal Question in Wills and Trusts in Kansas
Durable Power of Attorney vs/ Revocable Trust Institution
If both a Durable Power of Attorney and a Revocable Trust are created, which takes precedence? Does the Institution holding the Trust have power over the person holding Durable Power of Attorney?
2 Answers from Attorneys
Re: Durable Power of Attorney vs/ Revocable Trust Institution
I would take the position that for assets titled in the Trust, the trustee of that Trust takes precedence over an agent under a POA, unless the POA says very specifically otherwise. On the other hand, if an asset is not titled in the Trust, then the trustee has no authority over that asset, while the POA agent might, depending of course on exactly what powers and limitations are granted to the agent.
Re: Durable Power of Attorney vs/ Revocable Trust Institution
Illinois Law regarding POA's requires a POA document to specifically recite authority regarding trusts. If the POA does not specifically state that the agent has authority over the trust or trust assets, the agent has none.
On the other hand, the trustee of the trust has no authority over any assets not titled in the name of the trust.
In the event that the POA lists authority over the trust, and the trustee names a different person to be acting as the current trustee, then I think you have a conflict between the two documents that will more difficult to resolve.
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