My father always told my sister and I that we would inherit his house. A number of years ago he did a living trust which stated my sister an...

Question

My father always told my sister and I that we would inherit his house. A number of years ago he did a living trust which stated my sister and I would get the house. A few years ago he remarried and changed his will leaving the house to his new wife, shortly after he passed away. Now the will and the trust conflict. Which takes precedence and who gets the house?

Answer

It depends first on whether a deed was ever executed and recorded conveying the house from him as an individual to him as trustee of his trust. If so, the house is pretty clearly in the trust and without a seed back out of the trust to himself individually, it is not part if his estate and not subject to being willed. If there was no deed into the trust, then it gets a lot more complicated. In either case you will need to talk to a lawyer about this ASAP.

Answer

This may be even more complicated than Mr. McCormick suggests. If community property was ever invested into the house, then your stepmother has an equitable interest in the property in an amount to be determined. If the house was not in the trust, but you can establish that your father wanted it to be in the trust, then it may be possible to petition the Court to transfer it into the trust at this time (or at least treat the house as though it belonged to the trust).

It is imperative that you speak to a lawyer about this, if you wish to protect whatever interest you have in the estate.

Answer

I agree with both of the answers provided. It is also normal, when executing a new trust, to have a "pour over" will, which leaves things not titled in the trust to the trust. Are you sure a new will was not signed at the time the trust was executed? If so that will will usually supercede the old one. You really need counsel to analize the documents in effect.

Bill C