A trust controls trust assets and a will controls probate assets. Consequently, it is very common to write a trust and will simultaneously to ensure that the trust and will work harmoniously post-death. Obviously it would be problematic if the two testamentary instruments conflicted with each other. Still, a trust and will can only work in harmony provided both are duly executed.
A recent unpublished appellate decision addressed the atypical case of where a decedent writes a trust but never executes a will to accompany it.
In 1990, decedent and his former spouse executed a marital trust and funded it with various properties. In 2017, the parties divorced and a marital settlement agreement was executed. When decedent passed away, "he was neither married nor in a registered domestic partnership, and did not have any children."
Decedent's mother petitioned to be appointed her son's administrator. The trust beneficiaries, decedent's former step-children, objected to this appointment. The trial court found that appointment of decedent's mother as the administrator was merited.
The Court of Appeal ultimately upheld the appointment because decedent left behind a probate estate and passed away intestate.
The appellants made an interesting argument regarding what qualifies as a will:
"Appellants have not identified any operable will at the time of decedent's death that would transfer these assets into a trust and out of probate. The record indicates decedent's estate planning attorney prepared a pour-over will in connection with the Trust, but no evidence exists that the will was ever executed. And appellants confirmed no will was located with decedent's belongings. Instead, appellants argue the Bill of Sale executed with the Trust operated as a pour-over will. However, they cite no authority to support such an interpretation. Nor do they argue the Bill of Sale satisfies the statutory requirements for a will. (See, e.g., Prob. Code, § 6110.) Generally, courts reject attempts to transfer property by methods other than wills. For example, in Kelly v. Bank of America National Trust & Savings Assn. (1952) 112 Cal.App.2d 388, 396, the court held a deed designed to serve as a testamentary disposition of property would be "entirely inoperative." It explained, "This may only be done by a will executed as required by law. A deed, the purpose of which is intended to be testamentary, cannot be given effect." (Ibid.) Accordingly, we decline to interpret the Bill of Sale as a will. The trial court thus properly determined probate was necessary, at a minimum, for the disposition of decedent's personal property and bank account, and did not abuse its discretion in appointing Geear as the administrator."
Geear v. Pulliam, Napa County Superior Court, case # 20PRO00060
