What Happens When There is a Conflict Between a Will and a Living Trust in Virginia?

You have probably heard of both a living trust and a Will. Both are essential estate planning documents used to transfer property and assets to a person’s heirs and beneficiaries, and each has its own specific advantages to those who use them. Moreover, the two common estate planning documents are often used in concert to achieve comprehensive estate planning goals.

Wills vs. Living Trusts in Virginia

A Will is a document that specifies who receives your property and assets after you pass away, names guardians for your minor children, and identifies a person known as a personal representative to carry out your wishes as stated in the Will. A living trust, on the other hand, is a legal arrangement wherein an individual or institution, called the trustee, holds legal title to assets for the benefit of another party called a beneficiary.

A Will goes into effect only after your death, while a living trust takes effect as soon as it is created. What’s more, a living trust can be used to manage and distribute your assets while you are alive and well, when you become incapacitated, and even after your death.

A Will only governs the distribution of assets owned by you in your individual name at the time of your death. It does not govern the distribution of property you owned as a joint tenant, property you held in trust, or property you owned that has a designated beneficiary, provided the beneficiary is someone other than your estate.

A living trust, on the other hand, only governs the distribution of assets owned by the trust. In order for an asset to be owned by a living trust, it must be retitled in the name of the trust. This is referred to as funding the trust.

Another important difference between Wills and living trusts is that assets that pass through a Will must go through probate before they can be inherited by your loved ones. However, assets held in a living trust bypass probate and, therefore, avoid both the costs and delays associated with the probate process. A living trust also remains private, unlike a Will, which is a matter of public record.

Which Has Priority in Virginia? A Will or a Living Trust?

As mentioned above, it is not uncommon for a comprehensive estate plan to include both a Will and a living trust. But what happens when the terms and provisions of one conflict with those of the other? Which takes priority, the Will or the living trust?

In general, the first aspect to look at when determining priority among estate planning documents is the title of the asset. If the asset is titled in the name of a living trust, then that living trust takes priority over administering that particular asset. If the asset is titled in your name alone or doesn’t even have a formal title to reference, then your Will controls the administration and distribution of that asset.

However, what if you have a strange case where an asset like a bank account or real estate is titled in the name of a living trust, but the trust is not in existence? Maybe the trust was revoked or for whatever reason never established despite the title of the asset reflecting one? In that case, your family will likely need to petition the probate court to make a ruling that the title was either done in error initially or never updated after the living trust was revoked. If the court finds the petition has merit, then it will hold the asset as not being owned by a trust, and it will be distributed according to your Will, or in accordance with Virginia intestacy law if there is no Will.

Consult with an Experienced Virginia Estate Planning Attorney

To learn more about Wills and living trusts in Virginia, call us today at (703) 553-2577 or use the contact form to arrange a consultation with a knowledgeable and experienced Virginia estate planning attorney.

The information on this site is for general informational purposes only. The information presented in this site is not legal advice or a legal opinion. You should seek the advice of legal counsel of your choice before acting upon any of the information in this site.