Q: My friend’s father passed away & her half brothers want to use the living trust made in 2017 & not the revised from 6/19
The older trust benefits the brothers and pretty much leaves the daughter out of an inheritance. Can they choose which will to use?
A: It depends on which trust owns the asset. The older trust may own the house and bank accounts. The newer trust may own nothing. If neither trust owns the asset, the most recent Will controls who owns the asset. If the only Will points to the older trust, the older trust gets the asset. If neither trust owns the asset and there’s no Will at all, the asset will pass by intestacy, and most likely to the children and neither trust. If in doubt, pass it by a probate or trusts and estates attorney for an opinion.
A: No, they cannot choose which will to use. They must use the latest one unless they can prove that it was signed under duress or undue influence.
A: I misread the question as referring to wills. I agree with attorney Berge regarding the trusts, assuming they are two different trusts. However, if the latter is actually an amendment of the former, then the latter controls.
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