Trusts and wills are both essential instruments for coordinating a comprehensive estate plan. However, these documents can conflict and further complicate things for beneficiaries, executors, and trustees. In these situations, it is difficult to know which document takes precedence under California probate law without the expertise of a premier estate planning lawyer. Here is our guide to determining which instrument takes precedence when examining the differences between a will vs. a trust:
What is a Trust?
Trusts and Wills are both estate management instruments which facilitate asset distributions, but are very different in how they function under California probate law. Usually, trusts are more comprehensive than a will and offer several features that wills do not. For example, trusts provide:
The ability to circumvent probate (which is costly and takes a great deal of time)
Plans for incapacity
Plans for the continuation of asset management
However, a trust takes time and planning while a trustor (the person creating the trust) has enough capacity to create this complex legal document. Further, the trust requires funding (putting money and property in the name of the trust). It takes far more energy and detail during one’s life, but saves a tremendous amount of money and time after death for his/her/their beneficiaries.
What is a Will?
Essentially, under California probate law, a will is a crucial estate planning instrument that dictates your wishes for asset distribution after your death.
Wills can include a range of assets, including personal property, real estate, and digital assets. This document typically appoints an executor, who ensures they execute the terms of the will per the creator’s wishes.
However, wills require the probate court and a lengthy probate process.
Will vs. Trust: What Takes Precedence?
Under California probate law, a will and trust are separate instruments that can work together to coordinate a unified estate plan. Still, these documents sometimes conflict.
Determining what takes precedence is complicated and depends on the type of trust and the timing of transfers under the will and trust. There’s no simple ‘yes’ or ‘no’ answer to which takes precedence.
Here are considerations when determining which instrument takes precedence when considering wills vs. trusts:
When evaluating wills vs. trusts to determine which takes precedence, you must consider the trust type and what the estate planning instrument includes.
According to California probate law, a trust often supersedes a will if a person has created both instruments, meaning trusts can serve the same function as a will after death. Trusts take precedence because a trust is a separate legal entity that owns assets at the time of the trust is funded (when the creator put the property in the name of the trust), while a will manages any assets that are not titled in the trust.
Another consideration to understand why trusts supersede wills is that they become operative before the will can take effect. Any assets a trust doesn’t include can be subject to the instructions in the will, meaning a will can override a trust if the trust does not specifically include certain assets.
Assets not in the trust must pass through probate. Still, if beneficiaries can prove the decedent was in the process of transferring assets to a trust when they died, a trust instrument may override a will.
Ultimately, many people elect to have both a will and a trust in place to manage their estates as a part of a comprehensive estate plan.
Contact a Lawyer to Understand your Recourse when Dealing with Wills vs. Trusts
If someone has recently passed away and left behind conflicting estate planning documents, understanding which document takes precedence is integral to ensuring an estate is administered per the deceased’s wishes and California probate law. However, understanding which document overrides the other is complicated without the help of an expert estate litigation lawyer.
Fortunately, at Gokal Law Group, our premier estate litigation attorneys possess unrivaled expertise and an unfaltering dedication to clients. Contact us now for a consultation.
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