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.

When a person dies with excessive amounts of debt or there are lots of expenses related to the administration of his or her estate, certain gifts laid out in the deceased person's Will or Trust may need to be reduced. There's a specific sequence in which the gifts get cut back, and California Probate Code Section 21402 provides the sequence:

(a) Shares of beneficiaries abate in the following order:

(1) Property not disposed of by the instrument.

(2) Residuary gifts.

(3) General gifts to persons other than the transferor’s relatives.

(4) General gifts to the transferor’s relatives.

(5) Specific gifts to persons other than the transferor’s relatives.

(6) Specific gifts to the transferor’s relatives.

(b) For purposes of this section, a “relative” of the transferor is a person to whom property would pass from the transferor under Section 6401 or 6402 (intestate succession) if the transferor died intestate and there were no other person having priority.

For details on specific versus general gifts see this earlier blog post.

The abatement applies to debts, expenses, and the satisfaction of gifts from high to low priority; however, it does not apply by default to how estate taxes get apportioned.

Often a client may have grand ideas about giving gifts to certain family members and friends, without considering the fact that the assets they want to distribute at the time of their death may be insufficient to satisfy all of the gifts.

For example, a client may create his or her Will or Trust at a time when he or she is wealthy, but pass away at a time when much of the estate has been depleted for the client's care. It is therefore, important to consider the sequence in which the client may want gifts fulfilled to ensure that those that are most important to the client have the highest likelihood of being distributed to the chosen recipient.

A major focus of estate planning is to ensure that there's a coordinated, coherent, and unified distribution of your assets. That is, you should have a relatively clear idea of who gets what after you pass away.

Many times people confuse exactly which assets get distributed in accordance with their Will. For example, if Bill created a Will where he says he leaves everything to Jessica, Bill may believe that Jessica will get all of his assets when he passes away. However, some assets are not controlled by the Will (i.e., nonprobate assets), and to the extent that Bill has those types of property, extra steps need to be taken to ensure that they go to the appropriate people.

Here's a rundown of some of these types of assets:

1. Joint Tenancy Assets - Any asset held as "joint tenants" or "joint tenants with right of survivorship" with others will automatically pass to the surviving joint tenants upon death. 
2. Community Property With Right of Survivorship - In California, married couples may hold some assets as "community property with right of survivorship". This operates similar to joint tenancy in terms of having property pass to the survivor.
3. Revocable Transfer on Death Deed - This is a special type of deed, which allows real property to be transferred automatically to designated beneficiaries upon the owner's death.
4. Pay-on-Death Accounts - Some types of bank accounts allow you to name a beneficiary to receive the account after the owner passes away.
5. Life Insurance - The proceeds from life insurance are payable to the beneficiaries that the policy owner(s) have named.
6. Retirement Accounts - Similar to life insurance policies, retirement accounts get paid to the beneficiaries that the owner(s) have named.

It's easy to lose track of all of these assets, especially if for example, you've switched jobs a number of times and have multiple 401k accounts with various employers. However, to have a clear and unified estate plan, it's important to have a thorough understanding of who will receive each of your assets at the time of your death, since the Will controls the disposition of only certain types of property.

One of the most challenging parts for people unfamiliar with the estate planning process is the specific vocabulary used to talk about each of the documents involved in an estate plan.

In this post, we'll cover some of the words associated with the creation of a Will to help you be more conversant with your estate planning lawyer.

1. "Testator" - This is the person who makes a Will. 
2. "Gift", "Bequest", or "Devise" - These words are used interchangeably, and they all refer to property that you would like to give away at the time of your death. Thus for example, you might tell your estate planning lawyer, "I would like to make a bequest of $1,000 to my niece, Sally, when I pass away."
3. "Codicil" - From time to time, you may need to revise or amend your Will without rewriting the Will entirely. You can do this by creating a codicil to your Will.
4. "Executor" - This is the person that you name in your Will to carry out the tasks of collecting your assets, paying off your debts, and distributing your property to your beneficiaries.

A Will is amendable and revocable up until the time of death. A "Will" also includes the original Will and all Codicils to it.