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.

Every estate plan should have a Will as one of its components. Wills, however, can come in several varieties and have different requirements depending on which one you select.

Formal Witnessed Wills

A formal Will is usually produced on a word processor or other text editor. It has to be signed by you (the creator of the Will, also known as "Testator") and be witnessed by 2 witnesses. Best practice is to also include the date the Will was signed on the Will itself.

California Statutory Will

If you have a very simple situation, very little in the way of assets,  or an immediate need (e.g., before you travel) it may make sense for you to utilize the California Statutory Will.  This Will is essentially a form created with the Probate code of the State of California. (See California Probate Code Sections 6200-6243).

Holographic Will

A holographic Will is one that is completely hand-written by the Testator. It must be completely handwritten by the Testator but it does not require witnesses.  

Ancillary Provisions in the Will

The Will should also designate someone to act as your "Executor"--he or she will be the person in charge of making sure that your wishes are carried out. The Will is also where you may appoint a guardian for any minor children that you have.  Finally, you may have a "power of appointment" that another person granted you, which may require you to exercise that power in your Will by including a provision in it. 

Pour-Over Will

Wills that are created in conjunction with revocable living trusts are often referred to as "pour-over Wills". The reason is that the primary function of the Will is to "pour-over" the assets into the revocable living trust that you created after you die. In this context, the Will is essentially a back-up document in case you forgot to properly re-title certain assets in the name of your trust. As mentioned in prior posts, avoiding probate is a major goal for most clients, and in most counties, Los Angeles included, the probate process can often take over a year to complete.

After the first real meeting, the estate planning lawyer may have additional follow-up questions. But at this point, assuming you've made some key decisions, the lawyer should have enough data to begin researching any issues (if any) and drafting your estate planning documents. A typical estate plan in California consists of the following documents:

1. Revocable Living Trust
2. Pour-over Will
3. Durable Power of Attorney (Financial Decisions)
4. Advance Health Care Directive
5. Assignment of Assets
6. One or more real property deeds

Draft Documents

After an initial draft of the documents have been prepared, the estate planning lawyer will typically send them to you via e-mail or regular mail so that you can look them over and ask any questions you may have. Alternatively, you may wish to set up an appointment to go over each document with the guidance of your lawyer. This meeting doesn't need to be in person, and can be over the phone.

Revisions

If during your review you notice things that you would like to change or things that don't accurately reflect your wishes, now is the time to tell the lawyer so that he or she may update the documents before you sign them. The estate planning lawyer may re-send you the updated documents to ensure that the content has been revised to your specifications.

The end result should be a set of draft documents that is ready for signing, witnessing and notarizing.