Disclaimer: Consumer legal fundings and advances are not loans under applicable financing laws. Rockpoint’s products are non-recourse, meaning if you don’t win your case, you don’t have to pay us back. Receiving financial support in connection with a legal case is typically (and oftentimes incorrectly) referred to as a “lawsuit loan” or “loan.” Therefore, for the ease of search references, these terms may be used in this context to refer to our funding products, but we maintain our separateness from consumer loan products in all legal aspects.
After a loved one’s passing, sorting out the estate planning documents can take time. Your loved one’s will, if they had one, provides valuable instructions about how they wish to distribute their estate. However, the addition of certain types of trusts can complicate matters, as they may also dictate the distribution of assets and property.
Does a will override a trust in estate planning? Not usually, but the answer depends on the terms in the will and the trust — and what a judge decides during probate. Rockpoint Probate Funding explains the difference between a will and a trust and which takes precedence after a person’s death.
What Is the Difference Between a Will and a Trust?
Wills and trusts are two important documents within the estate planning process. While everyone should have a will, not everyone creates a trust. Trusts come in many shapes and forms, and their terms can vary significantly depending on the scope and complexity of the estate.
A will is a legal document that explains how a person wishes to distribute their assets after their death. It may include details such as:
- Who will take possession of their belongings
- What will happen to their cash, investments, and accounts
- How to pay any debts or financial obligations
- What will happen to the real estate they own
- Any other long-term plans they would like to make
Wills can include as few or as many details as the creator likes, but the more details there are, the less confusion there will be during probate. Probate is the legal process of bringing a person’s will to fruition after their death, and it often takes several months to complete.
Meanwhile, a trust is a legal entity where individuals can hold and manage assets and property. Trusts typically have beneficiaries, or the people who will one day receive the assets within the trust. They also have a trustee, or the person responsible for managing the assets in the trust.
The trustee can be the trust creator or another person; if it is the creator, they will need to appoint a successor trustee to fulfill the trustee responsibilities after their death.
People often use trusts as estate planning tools because the assets in a trust can bypass probate and go directly to the beneficiary after the contributor’s death. Revocable trusts are common estate planning documents, as the creator can adjust them over time if needed.
Which Takes Precedence: A Will or Trust?
Many individuals who set up trusts still create wills to cover the assets not contained in the trust. For example, a person may place their home or investments in the trust while using the will to cover all their other assets, such as their cars and belongings. So does a will override a trust, or vice versa?
Under normal circumstances, neither document takes precedence over the other. They typically do not overlap; therefore, the family can carry both to fruition after the creator’s death. But what if the two documents contain contradictory information?
Imagine that Jim created a will ten years ago, leaving his house to his adult children. Last year, Jim remarried and created a living trust indicating that the house would go to his new wife. He never updated the will to reflect this change. Which document takes precedence?
In this case, the living trust would probably override the will. Living trusts go into effect immediately, which means the trust was already active at the time of Jim’s death.
If the trust had been irrevocable, it would likely have only gone into effect at the same time as the will. The probate court may need to evaluate all of Jim’s estate planning documents to determine who should receive the house.
Navigating Probate During Discrepancies With Wills and Trusts
Does a will override a trust? Not automatically, and the prevailing document can vary from case to case. When a person’s will and trust contradict each other, the probate process may remain at a standstill until the court determines the correct asset distribution procedure. This type of discrepancy could prolong the process by several months.
During this time, your family will likely experience mounting expenses as you pay for the decedent’s funeral, bills, medical care, and other costs arising from their death. You may not have the means to pay for these expenses without using the decedent’s assets, but you can’t acquire them until the probate discrepancy has been resolved.
Many people turn to probate funding for financial assistance in this scenario. This type of advance allows individuals to borrow against the amount of money they expect to receive at the end of probate. They can receive a portion of the funds up front and use them to cover expenses while they wait for the probate process to finalize.
Seek Funding Assistance During Probate From Rockpoint Probate Funding
The answer to “Does a will override a trust?” is more complicated than many people realize. If your family is dealing with a complex probate process in which the decedent had contradictory estate planning documents, you may be struggling to make ends meet.
At Rockpoint Probate Funding, we provide fast, non-recourse inheritance advances while you wait for probate to finalize. You can use our funding to cover funeral costs, medical bills, attorney’s fees, or even to pay off debts and creditors on your loved one’s behalf.
Contact Rockpoint Probate Funding today at 888-263-8588 for a free evaluation.
