A crucial step in establishing a revocable living trust is to ensure that the appropriate assets are re-titled in the name of the trust. Failure to do so may require the Executor or Personal Representative of your estate to initiate a probate proceeding to distribute your remaining assets.

The current Covid-19 pandemic highlights yet another reason to avoid the probate process altogether. The current crisis has forced many courts across the US to close or severely limit their operations, making it nearly impossible to go through the probate process.

If a probate proceeding has not yet been started, your beneficiaries or heirs may need to delay the already time-consuming probate process even longer. If a probate proceeding has already started, but the Executor or Personal Representative in charge of administering your estate becomes incapacitated or is no longer able to act, there may be a significant delay before a successor can be appointed to complete the administration of your estate.

Key takeaways:

1. Utilize a revocable living trust to transfer assets to your beneficiaries.

2. Ensure that your assets are properly re-titled in the name of your trust.

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When Covid-19 symptoms escalate to the point of requiring a patient to be put on a ventilator, they are typically placed into a medically induced coma, which results in a period of incapacity rendering the patient incapable of making any decisions.

People often prepare for this by executing a durable power of attorney designating another person as agent to make financial decisions while they are incapacitated. (Similarly, Advance Health Care Directives are used to name agents to make medical decisions.)

Although the durable power of attorney is typically included as part of a person’s estate planning documents, it’s important to realize that financial institutions are often reluctant to rely on self-prepared or attorney-drafted forms. During a time of crisis, this can cause unwanted delays and complications.

Revocable living trusts, however, often do not cause the same type of issues. Your trust document can include provisions that automatically designate a successor Trustee in the event you are no longer able to act. Assuming your revocable living trust is properly funded with sufficient assets, your successor Trustee should be able to quickly step in and assist you with handling your financial affairs.

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Generally, cremated (or hydrolyzed) remains can be scattered anywhere that isn't explicitly prohibited, so long as 

(1) The remains are not distinguishable to the public

(2) Are not in a container, and 

(3) The person who has control over the remains has obtained written permission of the property owner or governing agency to scatter on the property.

See California Health and Safety Code §7116(a). 

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A pour-over Will is a document used to transfer assets to the trustee of a revocable living trust. The assets which are "poured over" into the revocable living trust are then administered pursuant to the terms of the revocable living trust (along with the assets that were already held by the living trust).

A pour-over Will is deemed valid if:

(a) the trust is identified in the Testator's Will; and

(b) the terms of the trust are provided in:

(i) a written document that was signed (other than the Will) before, during, or within 60 days after the signing of the pour-over Will; or

(ii) the Will of someone else who died before the Testator.

The specific statutory provision related to the validity of a pour-over Will can be found in Probate Code Section 6300, which provides:

(a) A devise, the validity of which is determinable by the law of this state, may be made by a will to the trustee of a trust established or to be established by the testator, by the testator and some other person, or by some other person (including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator’s will and its terms are set forth in a written instrument (other than a will) executed before, concurrently with, or within 60 days after the execution of the testator’s will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size, or character of the trust property). The devise is not invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator.

(b) Unless the testator’s will provides otherwise, the property so devised (1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given and (2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator (regardless of whether made before or after the execution of the testator’s will).

(c) Unless otherwise provided in the will, a revocation or termination of the trust before the death of the testator causes the devise to lapse.

Often clients acquire assets after creating a trust and forget that those assets should be re-titled in the name of the trust. The pour-over Will, while it may not avoid probate, can be viewed as a back-up document to ensure that all of the client's assets pass in accordance with the provisions of his living trust.