Father and mother did Trust Deed when father found out he had dementia and trusted it to one child (there are 3). Father died and mother recently updated will to include all 3 children to share equally on real property, now mother has passed, which one governs the property? We live in Florida!
Estate Planning Attorney
The answer is going to depend entirely on the language of the Trust Deed. If the transfer was irrevocable or if it named a beneficiary on death, then the Will would have no authority over the property.
There are many facts here that could change the answer, however, and i would advise that you seek a probate attorney in your area that could review each of the relevant documents. It is the only way to be relatively certain of the answer.
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7 lawyers agree
First, is the property itself in Florida also?
Second, the answer to this question requires an examination of the two documents by an attorney in the state in which the property is located (presumably, Florida).
Contact the state and county bar associations for the location of the property to get referrals to qualified counsel.
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4 lawyers agree
Both attorneys offer sound advice. I would also add if the trust has been funded then it would control those assets and the will is irrelevant.
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A "Trust Deed" is not something that is typically used in Florida. There is a Trustee's Deed and a Deed of Trust. While the documents in total should be reviewed, generally a Deed would control, then a Trust would be next in line, then a will would control if neither the Deed or Trust controlled the disposition of the property. The problem is that the Deed could direct the asset to a trust and the trust could have provisions which say to look to the will to make dispositions under the trust.
Then there are issues like the will, trust, or deed being invalid. It can be a complicated issue to determine which document if any will control.
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