A recent Investopedia article asks “What Happens When a Will and a Revocable Trust Conflict?” The article explains that a trust is a separate entity from an individual. When the grantor or creator of a revocable trust dies, the assets in the trust are not part of the decedent grantor's probate process.
Probate is designed to distribute the deceased individual's property pursuant to the instructions in their will. However, probate doesn’t apply to property held in a living trust because those assets are not legally owned by the deceased person. They’re owned by the trust. As a result, the will has no authority over a trust's assets.
Let’s say that Bernie (who is the grandfather) has two children named Pat and Junior. Bernie places the old family home into a living trust that says Pat and Junior are to inherit that house. Twelve years later, Bernie remarries. Right before his death, he executes a new will that says is the house is to go to his new wife, Andrea.
In this case, for the home to go to his new wife, Bernie would have had to amend the trust to make the house transfer to his wife effective. Thus, the home goes to the two children, Pat and Junior.
Sound confusing? It can be. Work with an experienced estate planning attorney so that your intentions can be carried out without any issues. As mentioned, a revocable trust is a separate entity and doesn’t follow the terms of a person's will when they die.
Make sure everything is legally binding and the way you intend it with the advice of an estate planning attorney.
It’s important to note that while a revocable trust supersedes a will, the trust only controls those assets that have been placed into it. Therefore, if a revocable trust is formed but assets aren’t moved into it, the trust provisions have no effect on those assets at the time of the grantor's death.
Reference: Investopedia (Aug. 5, 2019) “What Happens When a Will and a Revocable Trust Conflict?”