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By: Scott Grossman on October 10th, 2023

Does a Will Override a Trust?

As a Probate and Trust Litigation attorney, I am constantly asked by my clients, does a will override a trust?  

The short answer is no, but every trust beneficiary needs to understand why a will does not override a trust. 

A trust and a will are two separate legal documents. After your loved one passes, you may need to use their trust, will, or both. A trust document is a separate legal entity from the will. Which of them you will need to use depends on what property your deceased loved one owned. And how they held title to their property.

When a person dies, their property can pass one of three ways. 

It can pass through a trust, probate, or non-probate transfer. For a property to pass by trust, the property has to be titled in the name of the trustee when your loved one passes. If John Smith’s house is titled in the name of John Smith, Trustee of the John Smith Trust. Then the house will pass to the trust’s beneficiaries.

If the house is titled in the name of John Smith, then it was not in the trust. The house will pass through probate. John Smith’s will determines who inherits the house. So, you can see how important the title is. If John Smith’s trust leaves the house to his oldest child and his will leaves the house to his youngest child. Then how John Smith titled his house before his death will determine whether it passes through his trust or his will.

The third way property can pass after death is by a non-probate transfer. This legal term means a beneficiary designation, pay-on-death designation, or holding property in joint tenancy. Beneficiary and pay-on-death designations are often used for all sorts of accounts, life insurance policies, and annuities. The owner writes on the designation who inherits when they die. Suppose they name a person or people, and it passes to that person or people without going through a trust or probate (in other words, the will also doesn’t get used.) If the owner designates their trust, then there is a non-probate transfer to the trust, and the trust controls the distribution. If the owner fails to designate anyone, the account, life insurance policy, or annuity will go through probate, owned by the will.

When an asset is owned in joint tenancy, it will also pass through a non-probate transfer. When a joint tenant dies, the surviving joint tenant (or joint tenants if there are more than one) becomes the property owner. The property does not pass to the trust or go through probate. The fact that a joint tenant owner died is enough to pass the title to the surviving joint tenant.

Does a Will Override a Trust? 

According to California probate law, a trust often supersedes a will if a person has created both instruments. That means the trusts can serve the same purpose but with additional benefits such as enhanced privacy, asset protection, and the ability to circumvent probate. However, determining which instrument takes precedence when considering wills vs. trusts is complicated. It mainly depends on the type of trust and the timing of transfers under the will and trust. There is no simple ‘yes’ or ‘no’ answer to which takes precedence. If a person has both a will and a trust, the trust will supersede the will. If the two legal documents conflict, whatever assets have been placed in the trust will not be part of the estate. And the will has no authority over them. 


Knowing the Basics of Proper Administration

Please review our articles on the Beneficiary’s Rights in CaliforniaSuccessor Trustee Tax-Related Duties, and Removing a Trustee in California. If you would still like some more information on Trust Litigation and removing a trustee, check out our complete Overview of California Trust Litigation, available on our website. And if you have more questions about your rights as a Beneficiary and what you should know moving forward.

If you are still having some trouble, have any more questions, or want to talk to someone about your case, please give us a call or fill out our Get Help Now form.

If this aligns with what’s happening to you, it’s best to reach out as soon as possible. The longer you take, the more damage your Trust could take. Please call us at (888) 443-6590, and we would be more than happy to see if we can assist you.