Relationship of will to Living trust?
I have an 89 year-old cousin in a nursing home New York. I am her closest
next of kin although I have not been in touch with her for several years. I
am considering assuming power of attorney for her. If I am able to
accomplish this, my next step would be to arrange a living trust in order to
avoid probate and insure that her estate goes to the family in the event of
her death. Whether she is competent is a question still to be answered.
She signs the checks to pay for her room and board, but beyond that, I don't
think she is able to manage her own affairs.
The issue is that I don't know if she has a will. The nursing home may not
know either. If it turns out that she does have a will, how will that
affect the powers she might grant to me through power of attorney; and how
will it affect the living trust? I guess the question is which takes
precedence--a will or a living trust.?
The trust related documents I have dealt with (2) have been created with the
following: powers of attorney (for both health care and for property), living
wills, pour over wills (replacing any existing will) and the trust document
itself with the same succession of people named as POAs, Trustees and executors
after death in all of these documents; this is not necessary.
A will does not come into effect until after death and has no bearing on the
trust itself. If your cousin is competent and a new will is drawn up, it should
not be necessary to locate a possible old will.
If you do set up a living trust, be sure to have all/most of the assets
re-titled to be in the name of the new trust in a very timely manner. It may or
may not be advantageous to have the benificiaries of any insurance, IRAs etc.
changed to the trust itself; check with a tax specialist.