Does A Will Override A Trust In Georgia

Melissa Breyer, Esq.
Last Updated: June 10, 2024

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When there’s conflicts between a will and trust, which one overrides the other?

A will does not override a trust.

[Click here to jump straight to the explanation of how they work together.]

What Is A Will?

A will is for the assets that the deceased person owned.

A will outlines how your assets get distributed after death by naming:

Executor: The person responsible for administering the estate.
Beneficiaries: Individuals or entities who will receive the assets.
Assets: Property and possessions covered by the will.
Guardianship: Appointment of guardians for minor children.

What Is A Trust?

A trust is for the assets that the trust owns.

A trust is an arrangement where a trustee holds and manages assets for beneficiaries.

The types of trusts available are:

Revocable Trust: Can be altered or revoked by the grantor during their lifetime.
Irrevocable Trust: Cannot be altered or revoked once established without the beneficiary’s consent.
Living Trust: Created during the grantor’s lifetime.
Testamentary Trust: Created through a will and takes effect after the grantor’s death.

Does A Will Override A Trust In Georgia?

No, a will does not override a trust in Georgia.

A will’s instructions do not affect assets that the trust owns.

Here is how a will and a trust work together.

Trusts Get Priority

Trusts take precedence over wills.

The trust’s rules outline how a property gets handled.

Regardless of what a will says to do with the property.

For example, let’s say the will states the house should go to the kids.

But the trust says the trustee shall sell it and give the money to the kids.

The trust overrides the will and the house will get sold.

Wills vs Trusts

Feature	Will	Trust
Document Type	Testamentary document	Legal arrangement or entity
Effectiveness	Takes effect upon death	Can take effect during lifetime and after death
Probate	Must go through probate	Bypasses probate for assets in the trust
Privacy	Public record (probate is a public process)	Private document (not subject to public record)
Control of Assets	Controls only assets solely in the decedent’s name	Controls assets transferred into the trust
Management During Incapacity	No provisions for managing assets during incapacity	Can include provisions for managing assets during incapacity
Executor/Trustee	Executor appointed to administer the will	Trustee appointed to manage the trust
Guardianship of Minors	Can appoint guardians for minor children	Does not address guardianship for minors
Flexibility	Easy to change with a codicil	Revocable trusts can be changed; irrevocable trusts cannot without beneficiary consent
Administration	Court-supervised administration	Administered privately by the trustee
Avoiding Probate Costs	Subject to probate fees and delays	Can avoid probate fees and delays
Amendments	Amended through codicil	Revocable trusts can be amended easily; irrevocable trusts are more complex to amend
Asset Protection	Provides no protection from creditors during lifetime	Can offer some protection from creditors, depending on type

Conflicts Between The Will And Trust

Let’s look at some conflicts you can experience and the outcomes:

Conflicting Beneficiaries: The will and trust have different beneficiaries for the same property. The trust overrides the will.
Asset Titling: A will includes a property that the trust owns. Since the trust owns the property, the trust overrides the will.
Outdated Documents: The trust is outdated, but the will is updated. The terms of the trust override the will.
Revocation: The trust is revoked or amended without the will getting updated. Assets in a revoked trust go back to the estate and are distributed per the will.

Unless a trust is revoked, the trust overrides the will.

How To Handle Conflicts

We need to look at this:

before you pass away
during the probate process

During Probate

Here is how to handle conflicts between a trust and will during probate:

Review the will and trust for conflicts.
Inventory the assets and how they are addressed in each.
Talk to a probate lawyer to see what’s going on.
Tell the beneficiaries there are conflicting terms and how you’re handling it.
(Consider mediation if the beneficiaries disagree with how you handle it.)
File a petition in probate court if conflicts can’t get resolved amicably.

When You’re Alive

Here’s how to handle a conflicting trust and will when you’re alive still:

Update the trust (if it’s a revocable trust).
Amend the will to reflect the changes in the trust.
Update beneficiaries for insurance and retirement accounts, if needed.
Update the title on properties as needed.

Fill out the form to have our attorneys handle this for you.

We make sure:

the language between both are clear
beneficiaries won’t misinterpret the rules
there’s not conflicts based on the language of the documents
assets are titled properly

Get Help From An Estate Lawyer

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not notifying or paying off creditors
dealing with disputes among family

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