What happens if a will is created after an irrevocable living trust that has contradicting terms?
3 Answers from Attorneys
The assets subject to each document are distributed per the terms of the document. For example, an asset that is titled in the name of the trust will be distributed per the trust terms. Any asset not titled in the name of the trust will be distributed per the terms of the will.
I agree with Jennifer Rouse; however if an asset item named in both the trust and a subsequent will with different instruction as to distribution, there may be subsequent probate litigation as to which instruction should be followed; if you are a trustee of a trust or executor of a will, be prepared to obtain the services a of a probate litigation attorney who has experience in trust litigation and or will litigation, should different benficiaries be aserting competitng claims to the asset. Of course the value of the asset will have a major influence as to whether the parties conflicting claims will be settled or litigated. It is possible, if you are the named trustee and named executor, and the instructions re the partiular asset disposal are different in each document, concerning the same asset, then you may have a conflict of interest and have to decline one of the positions naming you in the documents.
Each document will be read as written. The trust will be read as written and so will the will. The situation might be different if this were a revocable trust.