If You Die with a Living Trust but No Pourover Will
The result might be two distribution plans, one for the assets in the trust, and another distribution plan for the probate assets. In some cases the two distribution plans might be alike because the beneficiaries of the trust are the same people who would inherit if the decedent did not have an estate plan. However, if the beneficiaries of the trust are not the same as the heirs of the decedent, the assets would be distributed to two different groups of people. For example, if the trust left all of its assets to the trustor's friends, and the decedent did not have a pourover will, the probate assets would not go to the friends, but would be distributed to the testator's nearest relatives.
Assets Controlled By a Pourover Will
The will controls only probate assets, i.e., assets that are not in a trust, not in joint tenancy, not being inherited by a surviving spouse, and not in an IRA or 401K. Probate assets are usually titled in the name of the decedent only. However, probate assets can also be found in situations in which a mistake has been made, such as failing to name beneficiaries for an IRA or 401K.
Does a Pourover Will Have to Go through Probate?
That depends on the value of the probate assets that are controlled by the pourover will. If the probate assets add to up to more than $100,000, a probate is required. If the amount does not exceed $100,000, the assets can be transferred to the trust by using declarations as authorized by California Probate Code section 13100.
What Else Does a Pourover Will Do?
It also distributes tangible personal property, such as furniture, jewelry, clothing, etc., to the testator's beneficiaries. It nominates executors and guardians for the testator's minor children. The pourover will also revokes prior wills. The pourover will might include other provisions, such as tax allocation clauses.
When Some of a Decedent's Assets Aren't Already in His or Her Trust
There are several ways that this can happen, such as negligence, mistake, and procrastination. Sometimes lack of understanding about how a trust works contributes to this problem. Confusion might also be a factor, particularly when real property is refinanced. The lender often requires that the property be taken out of the trust when it is refinanced, but the lender probably will not encourage the owner of the property to transfer it back to the trust after the refinancing.