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Property Owned In Living Trust Is Not Affected By New Will

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When Robert J. Furst wrote a new will at age 87, he probably thought he was taking the steps necessary to ensure that his two nieces would receive all his assets. The lawyer who prepared the new will, however, did not know that most of Mr. Furst’s assets had been placed in a revocable living trust more than a year before. The end result: Mr. Furst’s new will did not change the dispositive provisions of his living trust.

With the growing popularity of revocable living trusts, the problem facing Mr. Furst is becoming more widespread. Usually property is titled in the name of a trust, and the trust’s terms dictate who will receive what property at the death of the settlor—the maker of the trust. Although non-lawyers are perfectly capable of understanding this concept they often continue to refer to their wills as disposing of their property.

With the help of a lawyer, Mr. Furst (then age 86) had set up a living trust, apparently primarily for the purpose of naming someone to manage his affairs in the event that he became incapacitated. As is the usual custom with living trusts, virtually all his assets were transferred into the trust’s name.

Fifteen months later he visited another lawyer, but failed to tell him that he had already signed a trust. The new lawyer understood only that Mr. Furst wanted to change his will so that his two nieces received his entire estate, and that was what the lawyer prepared. Because the lawyer did not know about the prior trust it was not mentioned in the will or any documents he prepared for Mr. Furst.

After Mr. Furst died a probate proceeding was initiated, and the personal representative of the estate sued for a declaration that the new will implicitly revoked Mr. Furst’s trust as well. There was no dispute that Mr. Furst had the authority to revoke the trust, and the lawyer who prepared his final will made it clear that Mr. Furst wanted everything to be distributed in accordance with the new will he prepared. The probate court believed that Mr. Furst intended to revoke the trust and ordered that his nieces should receive the entire estate.

The Washington State Court of Appeals reversed, finding that the plain language of the documents mandated that Mr. Furst’s trust be distributed as it specified. Although it might be true that he intended a different result, said the appellate judges, he failed to take the necessary steps to make a change. One judge dissented, unsuccessfully arguing that the court should have followed Mr. Furst’s plain wishes. Estate of Furst, October 14, 2002.

Mr. Furst’s case would have been decided the same way in Arizona, based on a 1992 case with similar facts. The lesson is clear: revoking (or changing) a will does not necessarily revoke (or change) one’s living trust.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.