A will is not a trust and trust is not a will

A revocable living trust is not a will and a will is not a trust.  Recently I’ve been getting a bunch of emails asking about the “executor of my mom’s trust” and the “trustee of my dad’s will.”  The terms concerning wills and trust can get confusing but they can’t be used interchangeably.  Wills go through probate and the person in charge of the probate estate is the executor.  Executors are in charge of wills, not trusts.

Trusts don’t go through probate.  The person in charge of the trust is the trustee.  Trustees are in charge of trusts, not wills.

A will is not a trust: Knowing the Difference

This may sound like a word game but these are very important terms that can have real effects on cases.  Not all trusts are fully funded.  I’ve seen more than a few estates where part goes through probate and part passes through a trust.  The twist is the terms of the will and trust are not identical and the person nominated to be the executor of the will is different from the trustee of the trust.  I’ve had cases were a person was trying to describe a lifetime gift but they used the words trust and trustee.  Since their statements were admitted into evidence during their case this was a serious mistake in their word choice.

You don’t have to be a lawyer to keep this all straight and keep yourself out of trouble.  A will is a will, a trust is a trust, and an executor is never in charge of a trust.

 
Scott Grossman

Scott Grossman

Attorney

The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307
 

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