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.

Private professional fiduciaries are typically individuals who hold themselves out as experts in serving as Trustees of trusts. These individuals may come from a variety of backgrounds, including accounting and law. To be a private professional fiduciary in California, the individual must adhere to the requirement of the Professional Fiduciaries Act as provided in California Business and Professions Code Sections 6500 to 6592. (See also California Probate Code Section 2340). 

Despite licensing requirements, private professional fiduciaries may have different levels of competence and capability, so interviewing and determining a candidate's qualifications is important. 

It's important to also note that private professional fiduciaries may not be expected to provide the full range of services that a corporate trustee would, such as investment advisory. As a result, utilizing a private professional fiduciary may require additional fees for ancillary services. That being said, a private professional fiduciary may be more flexible in terms of dealing with sensitive family dynamics involving beneficiaries as they are typically individuals who are directly dealing with the relevant parties.

You can find a list of licensed private professional fiduciaries on the website of the Professional Fiduciary Association of California (www.pfac-pro.org). 

Best practices is for a Trustor to name one or more alternate successor Trustees in case the primary one designated is unable to act or desires to resign. It's also prudent to provide for a mechanism for resigning and appointing new successor Trustees. By naming back-up Trustees, one can ensure the continuity of management of the trust assets. Without a back-up Trustee, the beneficiaries of a Trust may need to petition the court to have a successor Trustee designated, which can be a time consuming, potentially complex, and costly endeavor.

It's important for a Trustor to remember that the successor Trustee may not be able to act when the time comes. It's possible that the successor Trustee will pass away before the Trustor or be in some other situation that renders it impossible for that individual to act. By naming back-ups you can have some control over the selection of people ultimately responsible for carrying out your wishes.

As a general rule, a trust should be explicit as to how decisions should be made among Co-Trustees of a Trust. Fortunately, when a trust document is silent, the California Probate Code provides a number of default provisions to clarify how a trust should operate. 

One such rule is California Probate Code Section 15620, which provides:

Unless otherwise provided in the trust instrument, a power vested in two or more trustees may only be exercised by their unanimous action.

Where there are only 2 co-trustees, this rule makes a great deal of sense, as one would not want only 1 of the 2 co-trustee making a given decision. On the other hand, if a trust has 3 or more co-trustees, it may be preferable to have decisions be made by a majority, on the theory that over 50% of the trustees agree upon a course of action.

The default rules exist to help us avoid questions regarding interpretation of trust documents, but sometimes opting out of certain rules or defining how such decisions should be made can result in a trust being operated in a more efficient manner.