Legal Question in Wills and Trusts in Pennsylvania
Living Trust and Will
My father died on Sept. 11, 2001.. He had a living (revokeable) trust and a will which were both done on the same date (Dec. 1991). The trust states that apon his death five properties are to be but into my brothers name, and the remaining properties shall be distributed to the beneficiaries, his children, share and share alike, free of the trust. In the very next paragraph it states the he can revoke this trust in whole or in part. If it is completely revoked, all trust property shall be transferred to me or as I may otherwise direct in writing. The will is very short. First: Revocation, I revoke all my prior wills and codocils. Second: I appoint my children to be Co-Exeutors of my will. Third: I give, devise and bequeath all my property, real, personal and mixed and wheresoever situate, to my children. Share and Share alike. What does the mean? How can it be both ways? Does the will over ride the living trust?
1 Answer from Attorneys
Re: Living Trust and Will
The language in the Will does not revoke the Living Trust. The Living Trust had to be revoked during your father's lifetime by him.
A Living Trust is a document which creates a Trust which has assets which are no longer owned by the person who created it. For example, if I created a Living Trust and put into the Trust a pencil I would no longer own the pencil, but the Living Trust would. When I die and the assets of my estate are gathered the pencil would not be a part of my estate--it would be outside the estate.
A Will dictates what happens to a person's estate when they die. Everything that is in the estate falls under a Will. So if a Will says divide everything then everything "in the estate" is divided. Things that are outside of the estate and which are not divided would be joint accounts, joint tenancy in real estate and Living Trusts.
Chances are unless your father revoked the Living Trust during his lifetime everything in the Living Trust will be distributed as it says in the Living Trust--it does not have to go through Probate. Everything which is not in the Living Trust, and not in a joint account, then would be a part of the estate and bequeathed according to the Will.
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