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Can a person have a will and a living trust

Knoxville, IA |

can a person have a will and a living trust? if they do which one takes priority?

Attorney Answers 3


  1. Absolutely. Neither really has "priority" in the way I think you are asking your question. When you establish your trust, you will convey your assets into it. For example, you will sign a deed conveying your home from yourself individually to your trust. Anything in the trust is not part of your estate when you die. Anything not in your trust will be distributed according to the terms of your will. It is a bit more complicated than this simple question and answer forum allows, so your best bet would be to discuss it with an estate planning attorney in your area.

    By the very nature of Avvo, you have only provided limited facts and no documentation, therefore, our response to your question is treated only as a hypothetical, and as such it is merely general in nature. You should not rely on this response in taking or forgoing action in your circumstances without discussing this matter with an attorney. If we had the opportunity to ask you sufficient questions and review relevant documents so that we were satisfied we had all of the relevant facts and circumstances, our response might differ significantly. Without the opportunity to ask you questions, and review all relevant documents and memoranda, we are simply unable to provide any form of legal advice. Our response to your question does not create any attorney-client relationship between us, and we are not acting as your attorney. We reserve the right to decline representation in any case. By answering your question, we are under no obligation to answer further questions. There are very specific deadlines for filing a lawsuit, replying to a lawsuit filed against you, or taking other action in order to preserve your legal rights. You should contact an attorney immediately in order to be fully advised of your rights, and so that you are aware of those deadlines. If you fail to act within the required time frame, you might be forever barred from asserting your rights or defending your position. The attorney answering this question is licensed in Illinois and Iowa only.


  2. Not only is it possible, but it is recommended. A living trust (also called a revocable trust or an inter vivos trust) can only deal with the assets that are specifically transferred to it. So long as the trust is valid, it will govern the handling of all trust assets, and the will would have no effect over assets in the trust. There should always be a "pour over" will drafted in connection with a living trust. This will ensure that any assets not handled through the trust can be properly handled according to your wishes. You should consult with an estate planning attorney in your area for more specific advice.

    DISCLAIMER: I am an attorney licensed to practice law in the State of Iowa only and not in any other state. The response I have provided is based on the limited information stated in your question or hypothetical scenario. Quite often, a more complete understanding of the facts would lead to different advice or to a broader discussion of relevant or related considerations. The answer provided does not create an attorney-client relationship between us. You should not decide to act or refrain from acting based on my response, which is an attempt to provide general information on a legal topic as presented by you. The law is subject to frequent change and varies from state to state. Also, legal matters often involve deadlines that may significantly affect your legal rights. You should always consult with an attorney in your own state who is knowledgeable in the subject matter, and you should do so as soon as possible.


  3. Typically, the will is termed a pour over will that sweeps assets that were in the decedent's name only, into the decedent's trust. In fact it would probably be negligence on the part of the drafting attorney NOT to draft a pour over will in conjunction with the living trust.

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