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My mom created a trust for her home 20 years ago and recently did a new will which does not mention it. Is the trust valid?

Cape Coral, FL |

The trust is only for her home, the will divides all her assets among her children-does the new will invalidate the trust?

Attorney Answers 5


  1. There could be different answers to your question as to how this works. First off, if her home is in a valid trust then that asset will avoid probate and be distributed to the beneficiaries named in the Trust at her death. Second, depending on how the Will is worded is to what happens to her other assets. The Will might "pour over" the assets into the Trust or it might name persons to receive the assets. Either is possible. However, Wills DO NOT avoid probate and, thus, depending on how her other assets are titled will determine how they would "flow" at the time of her demise.

    If you can convince her to see an elder law or estate planning attorney in her area it would be wise. However, sometimes parents don't listen to their kids. It's payback for all the times we didn't listen to them!

    Best wishes!

    Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  2. Mr. Smolinski gives a good answer. My first impression is that one does not invalidate the other and you need to understand that her assets can basically pass 3 ways 1.) through probate under her will, 2.)through a trust, 3.) through non-probate transfers such as beneficiary designations, payable on death designations or joint ownership. All these pieces need to be acting in concert for a plan to work. It may be that this will is a part of the plan or it may be that this will messes it all up...no one knows without meeting with her and reviewing it.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  3. I agree with Attorney Smolinski. I would simply add that it would be extremely unusual for a Will to ever invalidate a trust. The two documents apply to different asset classes and seldom conflict. A Will deals only with probate assets. A Trust controls only assets that are titled in the trust. It is possible for a Trust to be a beneficiary of a Will, and this is relatively common. If the property is titled in the name of the Trust, then the Will does not apply to it. A Will does not need to mention specific assets, but even if it specifically DID mention the home, if the home was titled in the Trust, then the Will would not apply.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  4. The only thing that I would add is that you can go on the County property appraiser's website or the clerk of court website and determine whether or not the home is titled in the name of the trust or whether it is titled in some other way, as, for example, in your mother's name alone. If the former, it should pass in accordance with the trust and without probate (subject to dealing with potential creditors of your mother's estate – even though the Homestead should pass to persons who qualify as "heirs " free from creditors claims) and, if titled in your mother's name alone, then the will would control.


  5. The new Will does not invalidate a living trust. So, the question is whether the trust was actually funded with the home. If so, then the trust will dictate what happens to the property. Otherwise, the home will be treated as the property of whoever is on the deed and in the manner listed on the deed. There could be joint tenants with or without a right of survivorship, there could be a life estate with one or more remaindermen, etc.

    Do you know the consequences of your legal situation on your Financial & Estate Plan? Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.

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