It is not unusual for a person in Miami to include both a will and a revocable trust in their estate plan. But life changes, and sometimes, a person adds a codicil to their will or changes the terms of the revocable trust.
Soon, the current will and the revocable trust look nothing like the originals and might even conflict with one another. This can cause problems when the person passes away.
Disputes between heirs
When a will and trust conflict, it can lead to disputes between heirs.
Heirs might disagree about what property was to be placed in the revocable trust and what property was to remain in the will.
Heirs might accuse one another of exerting an undue influence on their loved one. They may claim their loved one was pressured into changing the terms of their will or revocable trust in a way that favors the influencer.
Heirs might even argue about whether their loved one had the mental capacity to change a will or revocable trust. Their loved one might have been of sound mind when the original will or revocable trust was created, but diseases such as dementia and Alzheimer’s can rob a person of this capacity.
What happens when there is conflicting language?
When the language in a will and revocable trust conflict, one document must ultimately supersede the other. In general, the revocable trust will supersede the will unless there is vagueness that must be legally rectified, undue influence or lack of capacity.
Revocable trusts supersede wills because revocable trusts become effective during a person’s lifetime. A person places specific assets into the ownership of the trust while they are still alive. In addition, depending on the terms of the trust, beneficiaries may have access to trust assets or profits before the person passes away.
In contrast, a will does not take effect until the person passes away. At that point, the person’s assets will be placed in the hands of the probate court and after the probate process is complete, will be distributed to the person’s heirs per the terms of the will.
The assets in a revocable trust are not included in the probated estate. They belong to the revocable trust, not the deceased. The revocable trust is a separate entity and is not bound by the provisions of a will.
So, while there are benefits to having both a will and a revocable trust, know that if the two conflict, it is likely the terms of the trust will be carried out before the terms of the will.