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Does a Living Trust replace the need for a having a will?

Garden Grove, CA |

I have an outdated will and will be creating a Living Trust. I assume I won't need to update my will. Is that a correct assumption?

Attorney Answers 7

Posted

That is technically a correct assumption and the attorney who drafts your estate plan can go over it in more detail with you. Usually when someone creates a trust it supercedes all previous estate planning documents. I assume your current will details what you want to happen with your estate and who you want to be in control of it. The new trust will do that as well thereby making that will obsolete. That said, most estate plans include a pour-over will. This will usually does not have any specific bequests in it, but simply names an executor and states that the property will be distributed to the trustee of the trust to be distributed pursuant to the terms of the trust. This document is done so that if something is not properly funded into your trust and must go through probate, that will can be probated but the items will end up back in your trust and distributed under the terms of your trust. Hope this helps.

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Posted

While it is true that anything in a living trust will pass outside of the probate process, it is generally a good idea to have a Will that leaves any assets remaining in the estate to the Trust. Sometimes an asset doesn't get transferred, which may require probate. In the absence of an updated Will, or any Will, that asset would not necessarilly go where you wanted it to go.

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Posted

No. Even if you have a fully funded trust, you should still have a will in case something is missed or probate is needed for some other reason. If you restate your trust, you should update your Will to mention the restated trust. Also, be sure your executor is still who you would want.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

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Posted

Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

As my colleagues properly point out, it would behoove you to prepare a "pour-over" will along with your living trust. This way, any items in your estate not directly placed in your living trust will be poured over into the trust. Be sure to consult your own attorney to protect your legal rights.

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Posted

The attorney who drafts your revocable living trust will also draft a pourover will, which will supercede your existing will.

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1 comment

Marty Burbank

Marty Burbank

Posted

I agree with you, but i get the impression this person is trying to draft his own trust. I hope that he gives up on that idea and comes to see you instead.

Posted

Most all trusts are created with "pour over" wills.
They leave everything to your trust that you failed
to retitle in the trust name and also handle personal
items like jewelry.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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Posted

You would also need a will if you have minor children and want to name a guardian.

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