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The living trust is one of two principal ways to pass property, upon the death of
an individual, to the persons whom the individual wants to have it. The other
method is by will. The transfer by will requires the probate process, whereas the
Revocable Living Trust completely avoids the probate process as well as the need
for an attorney.
What happens if an individual does both - leaves a property to a person in a will
and also leaves the same property to another person in a Revocable Living Trust?
The trust takes precedence over the will! For example, if an individual has
$100,000 in stocks and first writes a valid will leaving certain stocks to John
Doe, and then later executes a revocable living trust leaving the same stocks to
Jane Doe, Jane Doe receives the stocks upon the individual's death because the
trust takes precedence over the will. Or, suppose that an individual placed the
stocks in a revocable living trust for John Doe and later executed a will leaving
the same stocks to Jane Doe. In this case, John Doe receives the stocks, because
the trust takes precedence over the will regardless of whether it was executed
before or after the will.
The revocable living trust takes precedence over the will in each case because
in each case the title (ownership) of the property was transferred when the trust
agreement was executed. The title (ownership) to the stocks could not be
transferred by will until the death of the owner. Even though both a trust
and a will may be revoked, the trust actually transfers title to the trustee at
the time of the execution of the trust and a will does not.
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