Question about a Will

[mattschick]

What is the name of your state? Massachusetts

My father passed away a few months ago and left a Trust and a Will. The trust names his 3 children to inherit his estate and each getting 33%. His Will which was made a few years later names his 3 children, 2 of which get 33% and the 3rd to get 17% and 17% goes to a charity. My question is do we have to follow what is written in the Will? Can we just split the estate amongst the 3 children at 33%? What happens if we don't go with his wishes?

 

[Zigner]

I'm sorry for your loss.

How are the assets titled? For example, if there is a house, is the housed owned by the trust, or is it only in your father's name? In general, the will can't give away something that is not owned by dad, and if the assets are owned by the trust, then your dad's will won't control how they are distributed. (For reference, moving assets in to the trust is called "funding" the trust.)
You may need to consult with an attorney.

 

[LdiJ]

I basically want to add on to what Zigner said. It is also possible that some of your father's assets are in the trust and some of his assets are not. If that is the case, then the assets in the trust would be divided according to the trust, 33% each, and the remaining assets would be divided according to the will.

 

[Dandy Don]

State laws most often stipulate that the trust will always override the will. However, your father may not have known that at the time he made the changes with the will--he could have made those changes with the trust. The trust should be administered very strictly and specifically, and if not done correctly the trustee could face breach of fiduciary duty charges.

 

[Taxing Matters]

State laws most often stipulate that the trust will always override the will.

That's not correct. Indeed, I know of no state that has such a law, though perhaps some odd state does. Certainly most do not. The trust only governs those assets that were transferred to the trust. The estate will have those assets that were not transferred to the trust and were not transferred outside the state by some other mechanism (property owned jointly with right of survivorship, pay on death beneficiary designations, etc). Those assets that are in the estate are distributed under the terms of the will if there is one, otherwise state intestate succession law applies. There is case law in some states that will, in the right circumstances, allow a curative transfer of an asset to the trust if it can be clearly shown that the decedent intended that. That is, however pretty limited and certainly is not the same thing as saying a "trust always will override a will."

 

[Zigner]

State laws most often stipulate that the trust will always override the will. However, your father may not have known that at the time he made the changes with the will--he could have made those changes with the trust. The trust should be administered very strictly and specifically, and if not done correctly the trustee could face breach of fiduciary duty charges.

That doesn't make sense. A trust can only control the assets that are held by the trust. As an example: Assume that title to my 1988 Oldsmobile is held in my name, Joe Zigner, and not in the name of my trust, "The Joe Zigner Trust Dated 1-1-2018". In my trust, I say that the 1988 Oldsmobile goes to Bob Smith, but in my will, I say that my 1988 Oldsmobile goes to Cheryl Smith. Are you saying that Bob Smith gets the car?

 

[Zigner]

That's not correct. Indeed, I know of no state that has such a law, though perhaps some odd state does. Certainly most do not. The trust only governs those assets that were transferred to the trust. The estate will have those assets that were not transferred to the trust and were not transferred outside the state by some other mechanism (property owned jointly with right of survivorship, pay on death beneficiary designations, etc). Those assets that are in the estate are distributed under the terms of the will if there is one, otherwise state intestate succession law applies. There is case law in some states that will, in the right circumstances, allow a curative transfer of an asset to the trust if it can be clearly shown that the decedent intended that. That is, however pretty limited and certainly is not the same thing as saying a "trust always will override a will."

Yeah, that...

 

[not2cleverRed]

What is the name of your state? Massachusetts

My father passed away a few months ago and left a Trust and a Will. The trust names his 3 children to inherit his estate and each getting 33%. His Will which was made a few years later names his 3 children, 2 of which get 33% and the 3rd to get 17% and 17% goes to a charity. My question is do we have to follow what is written in the Will? Can we just split the estate amongst the 3 children at 33%? What happens if we don't go with his wishes?

The Trust governs the distribution of the assets held/owned by the Trust.

The will applies to those assets not in the trust. The portion that has been willed to a charity should go to that charity, if that charity still exists. If an heir chooses to gift a portion of their inheritance to another heir, they can do so. There may be tax consequences.

 

[PayrollHRGuy]

State laws most often stipulate that the trust will always override the will.

Name one such state with a cite.