September 17, 2010

Pourover Will

When a person writes a revocable trust, one of the requirements is to fund the trust because a trust cannot exist unless there is trust property. Prob C § 15202. 

This is typically accomplished immediately after the trust is created. The attorney will often draft a deed transferring the home into the trust and provide written directions to the client as to how they can transfer their other assets, bank, stock and bond accounts for example, into the trust. 

The problem is that over time a person will most likely
accumulate more possessions and they often fail to transfer these possessions into the trust. For example, a person might buy a stock and fail to transfer it into the trust or they open up a bank account but do not title it in the name of the trust. Consequently, property not held in trust can be subject to probate, a result most people would rather avoid. Prob C § 13050(a)(1). 

In light of this, the antidote is to create a "pourover will." 

In a pourover will, the will writer (the testator), transfers the remainder of their estate to the trust they created previously. Prob C §§6300-6303. The pourover will is written so that any item acquired in the future by the testator, will be transferred to the trust. By doing this, the testator can avoid the necessity of probate if the amount in question is less than $100,000. Prob C § 13100.