In California Probate, Pour-Over Wills Might Be the Answer

When planning for the distribution of the estate after their death, some people opt for a Living Trust. Assets brought under a Trust avoid the lengthy process of California probate and can be managed by a "successor trustee," who is appointed to take over the management after the original trustee has passed away, resigned, or been declared incompetent.

The Trust may provide directions on how to distribute the trustor's (founder of the trust) property to relatives, friends, or charities, just like a will would do. There are other advantages to a Living Trust: it may avoid or reduce federal estate taxes, and the cumbersome and costly court-supervised process of Conservatorship could be avoided in situations where the estate owner can no longer manage his or her financial and personal affairs.

After setting up a Trust, the estate's owner needs to transfer the title of each item of property from his or her name to the Trust's name. This can be easy for certain items or take longer for others, such as real property. This is where a Pour-Over Will can help.

What is a Pour-Over Will?
A Pour-Over Will is a will in which the estate owner names only one beneficiary: the Living Trust. At the time of his or her death, the assets that have not already been brought under the Trust are transferred to the Trust and subjected to the distribution plan set forth in the Trust.

This system allows the trustor to make sure that, even if death comes earlier than expected, assets like real estate, motor vehicles, stocks and bonds, IRA or 401K funds, and any other probate assets that are still titled in his or her personal name are "poured over" into the Living Trust.

Do the "Poured Over" Assets Have to Go through Probate?
If the value of the decedent's assets that were not yet brought under the Living Trust at the time of death exceeds the limits determined in the Small Estates code section, then the answer is yes. If not, the assets can be transferred to the Trust using declarations as authorized by the California Probate Code.

A Pour-Over Will can include some other provisions, such as the distribution of personal property (clothing, jewelry, furniture...) to beneficiaries, or directions with regard to taxes or guardianship for minors.

Talk to San Diego estate planning and probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation. Also, order our FREE book The Insider's Guide to California Probate and Trust Administration.

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