The Will Besides a Living Trust
Reasons for Having a Will Besides a Living Trust
Contents of an Ordinary Will
Pour-Over-Wills
Conflicts Between Will and Living Trust
Formalities
Revoking and Altering a Will
Reasons for Having a Will Besides a Living Trust
Even though you have a living trust, that does not mean that a conventional will is dispensable. Almost all property that has not been transferred to the trust at the time of the grantor’s death will pass according to the grantor’s will. That could e.g. be property that the grantor acquired shortly before he died. Certainly, assets for which a beneficiary was already named in the according document of title are excluded from passing by will.
Another frequent reason for having a will is the appointment of a guardian for minor children, because in most states this can not be done within the declaration of trust. Instead state law requires the appointment to be embodied within a classic will.
A will is also a good idea to designate an executor who will be in charge of representing the grantor in any probate court proceedings. Therewith the grantor ensures that the person he or she wishes to execute the estate will be appointed as executor. If no executor is named in a will the probate court will name an executor. Usually the same person serves as successor trustee and as the legal executor.
Contents of an Ordinary Will
Generally a will is an instruction for the probate court of how the estate of the decedent it to be distributed to hers or his heirs. Provisions of the will generally apply only to those estate assets that have not been transferred to a living trust prior the death of the grantor. The will generally (there is an exemption for Washington state) does not cover assets that do not require probate, because there is already a beneficiary named in the according document of title, like e.g. “Pay-on-death-accounts”.
Generally an ordinary wills contains the following items:
Pour-Over-Wills
Wills can be designed as “pour-over-wills”. In that case the trust of the testator is designated to inherit all the property that has not yet been transferred to the living trust: Upon death of the grantor the will figuratively pours all the not-yet-transferred property into the trust.
Pour-over-wills are often a good method to channel all property of the decedent through the trust. If such a will is used, only one legal instrument (the trust) governs the distribution of the decedent’s property. If not, a different set of rules each applies to the distribution through the will and the distribution through the living trust. The result is increased complexity of the succession, which in general is a good thing to avoid.
Nevertheless pour-over-wills are occasionally frowned upon, because they actually might not avoid probate. That is true to the extent that the pour-over-will itself cannot avoid probate. If there is enough property left to trigger probate, the pour-over-will won’t avoid this. However, if – like it is usually recommended – the major assets of the grantors property are put into the trust, there won’t be any probate whether the will is designed as pour-over will or not. Thus it cannot be argued, that a pour-over will is a bad idea because it would not avoid probate – in fact the decision between pour-over and traditional will has no impact on this at all.
But there is one major disadvantage of a pour-over-will. If there is enough property outside the trust to trigger probate proceedings, the poor-over-will forces the trust to exist longer than it would with an ordinary will. This is because the trustee may have to keep the trust running until the probate proceedings are finished. In the contrary if the will orders the property to be transferred to the heirs directly, the living trust could be wind up and closed more quickly, because the trustee does not have to wait for the probate proceedings to be completed. In this cases indeed an ordinary will may be favorable.
However, as always the decision for or against having a pour-over-design depends on the individual facts and circumstances. Also the tax implications of the choice have to be considered. The estate planning attorneys of Rinne Legal in San Francisco, Oakland, Fairfield, Walnut Creek and Sacramento will be able to asses your situation and draft a will right to your needs.
Conflicts Between Will and Living Trust
When drafting a will, it is very important to avoid the implementation of conflicting provisions. The will and the living trust are supposed to work hand in hand. All assets that the grantor transferred to the trust must be handled by the trust and all the other assets by the will (note: assets for which their is already an designated beneficiary, like e.g. joint tenancy property, should not be distributed by either instruments).
A single asset should generally not be mentioned in the will and in the trust (with the exemption of pour over wills!). Leaving the same property by multiple instruments only raises confusion among the heirs that in the worst case might lead to a lawsuit.
Also the same person should be named executer of the will and successor trustee of the living trust. This will make sure that no personal conflict between different mangers will disturb the property distribution process.
Formalities
Generally a will must be in writing, it must be signed and it must be witnessed by two witnesses. Unless the will meets all those requirements the will is not valid. Witnesses must be sound mind adults. In most states a witness may not be a beneficiary also named in the will, because the law assumes that witnesses that inherit property through the will are biased and therefore not suitable to witness the signing of a will.
In California there is also the possibility to create a so called holographic will. A holographic will is valid even if not witnessed. Instead the signature and the material provisions of the will must be in handwriting and generally the document should contain the date of execution. However, holographic wills can be challenged easier then ordinary wills. Therefore, being a diligent attorney, I usually consult my clients to get their will witnessed.
In California there is also the possibility of using a statutory form to create a basic will. For further reference see Sec. 6200-6243 of the California Probate Code.
Revoking and Altering a Will
A valid will can be revoked by explicitly revoking it. That will also be the surest way to state, that a will is no longer valid. Revocation requires the same formalities as its creation (see above).
Alternatively a will can be revoked by physical act. The California Probate Code for example suggests the document being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator.
The law also presumes physical destruction with the intent of revocation if the will cannot be found after the death of the testator. That is actually a very important reason to store the will in a safe place, which can be easily uncovered by the testator’s heirs. Estate planning and probate lawyers often offer to store the will for their clients to safeguard it from accidental loss.
Contents of an Ordinary Will
Pour-Over-Wills
Conflicts Between Will and Living Trust
Formalities
Revoking and Altering a Will
Reasons for Having a Will Besides a Living Trust
Even though you have a living trust, that does not mean that a conventional will is dispensable. Almost all property that has not been transferred to the trust at the time of the grantor’s death will pass according to the grantor’s will. That could e.g. be property that the grantor acquired shortly before he died. Certainly, assets for which a beneficiary was already named in the according document of title are excluded from passing by will.
Another frequent reason for having a will is the appointment of a guardian for minor children, because in most states this can not be done within the declaration of trust. Instead state law requires the appointment to be embodied within a classic will.
A will is also a good idea to designate an executor who will be in charge of representing the grantor in any probate court proceedings. Therewith the grantor ensures that the person he or she wishes to execute the estate will be appointed as executor. If no executor is named in a will the probate court will name an executor. Usually the same person serves as successor trustee and as the legal executor.
Contents of an Ordinary Will
Generally a will is an instruction for the probate court of how the estate of the decedent it to be distributed to hers or his heirs. Provisions of the will generally apply only to those estate assets that have not been transferred to a living trust prior the death of the grantor. The will generally (there is an exemption for Washington state) does not cover assets that do not require probate, because there is already a beneficiary named in the according document of title, like e.g. “Pay-on-death-accounts”.
Generally an ordinary wills contains the following items:
- Name, date of birth and address of the testator
- Name, date of birth of beneficiaries and alternative beneficiaries and residuary beneficiaries
- Appointment of an executor and alternate executor
- Naming of specific gifts (optional) – Those can only be items that have not been transferred to the living trust
- Nomination of a personal guardian for the testator’s children (optional)
- Nomination of a property guardian for the testator’s children (optional)
Pour-Over-Wills
Wills can be designed as “pour-over-wills”. In that case the trust of the testator is designated to inherit all the property that has not yet been transferred to the living trust: Upon death of the grantor the will figuratively pours all the not-yet-transferred property into the trust.
Pour-over-wills are often a good method to channel all property of the decedent through the trust. If such a will is used, only one legal instrument (the trust) governs the distribution of the decedent’s property. If not, a different set of rules each applies to the distribution through the will and the distribution through the living trust. The result is increased complexity of the succession, which in general is a good thing to avoid.
Nevertheless pour-over-wills are occasionally frowned upon, because they actually might not avoid probate. That is true to the extent that the pour-over-will itself cannot avoid probate. If there is enough property left to trigger probate, the pour-over-will won’t avoid this. However, if – like it is usually recommended – the major assets of the grantors property are put into the trust, there won’t be any probate whether the will is designed as pour-over will or not. Thus it cannot be argued, that a pour-over will is a bad idea because it would not avoid probate – in fact the decision between pour-over and traditional will has no impact on this at all.
But there is one major disadvantage of a pour-over-will. If there is enough property outside the trust to trigger probate proceedings, the poor-over-will forces the trust to exist longer than it would with an ordinary will. This is because the trustee may have to keep the trust running until the probate proceedings are finished. In the contrary if the will orders the property to be transferred to the heirs directly, the living trust could be wind up and closed more quickly, because the trustee does not have to wait for the probate proceedings to be completed. In this cases indeed an ordinary will may be favorable.
However, as always the decision for or against having a pour-over-design depends on the individual facts and circumstances. Also the tax implications of the choice have to be considered. The estate planning attorneys of Rinne Legal in San Francisco, Oakland, Fairfield, Walnut Creek and Sacramento will be able to asses your situation and draft a will right to your needs.
Conflicts Between Will and Living Trust
When drafting a will, it is very important to avoid the implementation of conflicting provisions. The will and the living trust are supposed to work hand in hand. All assets that the grantor transferred to the trust must be handled by the trust and all the other assets by the will (note: assets for which their is already an designated beneficiary, like e.g. joint tenancy property, should not be distributed by either instruments).
A single asset should generally not be mentioned in the will and in the trust (with the exemption of pour over wills!). Leaving the same property by multiple instruments only raises confusion among the heirs that in the worst case might lead to a lawsuit.
Also the same person should be named executer of the will and successor trustee of the living trust. This will make sure that no personal conflict between different mangers will disturb the property distribution process.
Formalities
Generally a will must be in writing, it must be signed and it must be witnessed by two witnesses. Unless the will meets all those requirements the will is not valid. Witnesses must be sound mind adults. In most states a witness may not be a beneficiary also named in the will, because the law assumes that witnesses that inherit property through the will are biased and therefore not suitable to witness the signing of a will.
In California there is also the possibility to create a so called holographic will. A holographic will is valid even if not witnessed. Instead the signature and the material provisions of the will must be in handwriting and generally the document should contain the date of execution. However, holographic wills can be challenged easier then ordinary wills. Therefore, being a diligent attorney, I usually consult my clients to get their will witnessed.
In California there is also the possibility of using a statutory form to create a basic will. For further reference see Sec. 6200-6243 of the California Probate Code.
Revoking and Altering a Will
A valid will can be revoked by explicitly revoking it. That will also be the surest way to state, that a will is no longer valid. Revocation requires the same formalities as its creation (see above).
Alternatively a will can be revoked by physical act. The California Probate Code for example suggests the document being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator.
The law also presumes physical destruction with the intent of revocation if the will cannot be found after the death of the testator. That is actually a very important reason to store the will in a safe place, which can be easily uncovered by the testator’s heirs. Estate planning and probate lawyers often offer to store the will for their clients to safeguard it from accidental loss.
