Does a Will Override a Trust in New York City

A will cannot override a revocable or irrevocable trust. Irrevocable trusts, from the term itself, cannot be revoked, amended, or overridden. In the case of a revocable trust, the only way to override it is through the execution of an amendment to the trust, executed with the same formalities as a trust.

Will vs. Trust

A will is a legal document executed by a testator in accordance with state formalities, providing for dispositions of property to be given effect after the testator’s death. Property that passes through a will is considered probate estate.
A trust, on the other hand, is a legal document executed by a grantor, providing for the management (which may include disposition) of the grantor’s property, to be given effect immediately upon execution and transfer of trust assets to the trustee. Trust assets are considered non-probate estate.
Both wills and trust are estate planning documents that are designed to be complementary and not conflicting with one another.

Conflict Between a Will and a Trust

In case there is conflict between a will and a trust, the trust provisions usually prevail. This is because trust assets, as non-probate assets, are removed from the control of the will.
Trust assets have designated beneficiaries. Probate assets, on the other hand, have no designated beneficiaries. The disposition of these probate assets, when the testator did not specify who will receive it as beneficiaries during his lifetime, are thus subjected to the disposition provisions in the will.

Timing of the Transfer to and the Character of the Trust

The timing of the transfer of the property to the trust may or may not raise issues regarding the grantor’s capacity, which could be raised as an argument to invalidate a transfer.
When a grantor transfers property to an irrevocable trust, and thereafter, he executes a will disposing of that same property, the grantor’s capacity may be questioned because the grantor did not understand the nature and consequences of the transfer of his property to the irrevocable trust. The grantor should have known, at the time he executed the will, that the transfer to the irrevocable trust was irrevocable and was not part of his property anymore that he could dispose of by will.
When a grantor transfers property to a revocable trust, and thereafter executes a will disposing of that same property to another person who is not the beneficiary in the revocable trust, the grantor’s capacity may also be questioned on the ground that he did not understand the nature and extent of his property at the time he executed the will.
On the other hand, when a grantor executes a will disposing of a particular property, and thereafter executes a trust transferring such property to the trust, the gift in the will is considered adeemed and revoked. The will cannot override the trust.

Complementary Provisions of a Trust and Will

Most of the time, an estate planning attorney will use both a will and a trust in complementary fashion. Trusts are almost always used for purposes of planning for Medicaid, for asset protection, and for ensuring a fair distribution in cases of blended families. Estate planning attorneys then direct the execution of a pour-over will that transfers other remaining property (or subsequently purchased property) not transferred to the trust to a previously established trust upon the death of the testator.
In case there is conflict between a trust and a will, trusts usually prevail. However, in the event that your situation possesses unique circumstances that may require a different interpretation, an estate planning attorney can help you in analyzing your case. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].