The trust says one thing and the will says another — which controls?

Question

Accepted Answer

Neither one overrides the other, because they govern different property. The trust controls the assets that are titled in the name of the trust. The will controls only the assets that were still in the decedent's own name at death, which is the probate estate. They are not two competing versions of the same instrument, and a will signed later in time does not amend a trust signed earlier. So the first question is never "which document wins," it is "whose name was on this particular asset on the date of death." If the house was deeded to the trust, the trust's distribution provisions decide who gets it, no matter what the will says. If the brokerage account was still in your father's individual name, the will speaks to it. Assets with their own beneficiary designations — retirement accounts, life insurance, transfer-on-death registrations, accounts held in joint tenancy — follow the designation or the form of title and ignore both documents entirely.

In most California plans the will is a pour-over will, and its only real job is to catch what the trust missed: it directs anything still in the decedent's name into the trust, so the trust's terms end up governing after all. That is why the apparent conflict usually dissolves once you read the will's dispositive clause. What people miss is that a pour-over will only functions through probate, unless the leftover asset is small enough for a summary procedure; the personal property affidavit under Prob. Code §§ 13100–13101 reaches $208,850. The other thing to check is whether the asset was supposed to be in the trust and simply never got retitled, because then there may be a better answer than probate. A petition under Prob. Code § 850, following Estate of Heggstad (1993) 16 Cal.App.4th 943, can confirm the asset was already trust property based on the signed declaration of trust. If, after all of that, the two documents really do give inconsistent instructions about the same trust asset, the trust governs and the fix for genuinely defective language is a petition, not an argument at the kitchen table.

Authority: Prob. Code §§ 13100–13101; Prob. Code § 850; Estate of Heggstad (1993) 16 Cal.App.4th 943

The trust says one thing and the will says another — which controls?

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