Legal Guide

Does a Will Supersede a Trust?

by Bhavya Choudhary · 2 min read

will vs trust

A will and a trust are two independent legal instruments that normally work together to coordinate an estate plan. The two papers should ideally function together, but because they are different and distinct agreements, they might occasionally clash. 

This clash might be unintentional or intentional. In this blog, we will learn about the differences between will vs trust and also which will supersede whom in case of a conflict.

In the case of will vs trust, because a trust is a separate entity, a will has no authority over who receives the assets of a living trust, such as cash, stocks, bonds, real estate, and jewels. It is a distinct entity from a person. 

The assets under the trust do not go through the probate procedure with the decedent’s personal assets when the grantor dies. They are still considered trust property.

Most people understand how a will works, but you must also grasp what trust is, to recognize which one takes precedence in contradictory circumstances. It need not be difficult or expensive to write a will. You can also create your online will in a few simple steps. Creating an online will is both safe and secure.

Individuals who use a trust in estate planning do so with either a living trust or a testamentary trust, both of which are explained here.

Living Trust

A grantor, also known as a settler, creates a living trust throughout their lifetime. This is a trust in which the grantor relinquishes ownership of the assets placed in the trust. They give the living trust ownership of such assets. The trust will then keep the assets that the individual has designated, and the grantor will no longer possess them.

Testamentary Trust

  • This sort of trust takes effect after a person’s death, as it is established by provisions in their will. Because the testamentary trust isn’t established until after the individual dies, they retain ownership of their assets until they die, at which point the assets are subject to the terms of the will.

When someone dies, their will must be probated, and their assets must be transferred according to the terms of the will. Property kept under a living trust, on the other hand, is not subject to probate because the assets are not legally owned by the deceased. As a result, a trust’s assets, which may include cash, real estate, automobiles, jewelry, collectibles, and other physical objects, are not subject to the will.

The following points outline the comparison between will vs trust

  1. The difference between will vs trust is that a will is a statement that specifies how the testator’s assets will be handled and distributed after his death. Contrarily, a trust is a formal structure in which the settler appoints a trustee to manage the asset on behalf of the beneficiary.
  2. The difference between will vs trust is that all of the information is contained in the Will itself. In the event of trust, on the other hand, the trust deed is put into action.
  3. The difference between will vs trust is that Only one of the assets listed in the trust deed is transferred in trust; all of the testator’s estate’s assets are covered by the will.
  4. The difference between will vs trust is that a will only take effect after the testator’s passing. As opposed to a trust, which takes effect when the asset is given to the trustee.
  5. The difference between will vs trust is that a will must go through the probate procedure, in which a judge determines if the will is legal and oversees its administration. Compared to a trust, which is not subject to probate.
  6. The difference between will vs trust is that before the testator’s death, a will may be repealed at any moment. Contrary to trusts, where revocation is based on the type of trust, a revocable trust can be revoked at any moment during the author’s lifetime whereas an irrevocable trust cannot be revoked after it has been established.
  7. The difference between will vs trust is that when the testator dies, A becomes a public record. The trust, on the other hand, is a private document.

Important Factors to Take into Account in case of will vs trust

  • In the case of will vs trust, there is a crucial aspect of trust law that must be considered while deciding whether a will should supersede a trust or not. 
  • In legal words, establishing a trust implies the trust becomes its own legal entity. This is because, regardless of whether the trust is revocable or irrevocable, the grantor no longer owns the assets put into it.
  • In the case of will vs trust, this concept directs the resolution of situations of a dispute between wills and trusts. The reason for this is that when someone dies, their will specifies how their possessions should be dispersed. 
  • The will is admitted to probate, which means the courts provide the executor of the will the authority to distribute the assets according to the deceased person’s wishes. The will, on the other hand, only applies to assets that the individual had at the time of their death.
  • In the case of will vs trust, if the person has created any trusts before their death, those trusts are legal entities in their own right. 
  • Because the grantor no longer owns the assets held in these trusts, any reference to them in the will is meaningless because the trust owns them.
  • In the case of will vs trust, there are times when provisions in a will specify assets owned by a trust, but in these cases, the trust’s legality takes precedence over the will’s. 
  • This sometimes leads to disagreement among heirs, since those mentioned in the will think the will should be carried out and they should inherit particular assets. 

Conclusion

The blog highlights the difference between will vs trust. Even for those who do not have a significant estate, the complexities of estate planning can be intricate and confusing. 

As a result, it is important to seek the advice of legal professionals who have the necessary expertise and experience to guarantee that your objectives are appropriately carried out. 

Both trust and will are useful estate planning instruments that control the transfer of assets because they let you choose someone to handle the transfer or distribution of property to your near and dear ones. 

A will and a trust are two independent legal instruments that normally work together to coordinate an estate plan. The two papers should ideally function together, but because they are different and distinct agreements, they might occasionally clash.

Bhavya Choudhary

Written by

Bhavya Choudhary

Get Expert Legal Advice For

Will Registration

Enter a valid phone number

Related Articles

View MoreView More

Hi there 👋!

How can I help you?

whatsapp