[WSBAPT] Does a will trump a living trust?

Tue Jun 21 13:36:07 PDT 2016

Seems to me the key question here is whether the trust was funded prior to death and I don’t believe the fact pattern makes that clear. 

If a deed was recorded transferring the property into the trust prior to death, then the trust controls.

If no deed was recorded, then the will controls. Even if a pour-over will was executed at the time the living trust was executed, the latter will would supersede the pour-over will. 

So at death - who owned the property.. the trust or the deceased? And from there the answer flows. 

- Mark

__
Mark K. Funke, Attorney
4111 East Madison St. #272
Seattle, WA 98112
P.206-632-1535
mark at funkelaw.com
Licensed in Oregon & Washington

On Jun 21, 2016, at 1:12 PM, Andrew Phillips <andrewjlphillips20 at gmail.com> wrote:

> Jenna,
> A living trust takes effect during the father's lifetime, whereas the will does not come into effect until his death. The trust owns the property, not the deceased; therefore, it is not subject to the will. I would agree with the Texas attorney that the trust property in Montana is not subject to the probate in Texas--of course depending on any unknown facts.
> 
> 
> 
> V/r,
> Andrew J. Phillips, Esq.
> 19465 NE Norrland LN | Poulsbo, WA 98370
> WA Bar # 50848 | ID Bar # 9542 
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> On Tue, Jun 21, 2016 at 12:41 PM, Jenna Brozik <jennaprinzlaw at gmail.com> wrote:
> Hello listmates:
> 
> Here is the scenario:
> 
> My client comes in and has a living trust that her parents had drafted in California. My client lives in Washington state.  The father was the last to pass away and when this happened, his daughter, my client, became the trustee of the living trust.  According to the living trust, the daughter gets a property her parents own in Montana. My client doesn't know if there was a will with the living trust and she does not know what attorney drafted the living trust and there is no indication on the living trust who drafted it.
> 
> After the living trust was drafted, my client's mother died and her father remarried to a woman in Texas.  Her father drafted a new will before he died which stated everything goes to his new wife, including all property. Now the father's estate is going through probate in Texas.
> 
> The attorney in Texas doing the probate insists that since the Living Trust owns the Montana property, then the probate in Texas does not control the disposition of the property in Montana but the living trust does.
> 
> Please give me your take on this if anyone has time.
> 
> Thanks,
> 
> 
> Jenna Brozik
> Attorney at Law
> Prinz & Brozik PLLC
> 445 S Grand Ave
> Pullman, WA 99163
> (509)338-0908 / (509) 338-3527 (fax)
> jennaprinzlaw at gmail.com
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