A living trust is a common California estate planning tool that helps you avoid probate. In theory a trust is relatively straightforward. You sign a document creating the trust and naming a trustee–usually yourself during your lifetime–and then transfer various assets into the trust. For major items like your home, you will actually need to sign a new deed transferring the real property from you as an individual to you as the trustee of the revocable trust.
Living trusts are not foolproof. There will likely be some assets that you neglect to transfer into the trust while you are still alive. To address this, it is a good idea to have a “pour-over” will, which is basically a last will and testament that gives any remaining property in your probate estate to your living trust at death.
Trusts Can Now be Created After Pour-Over Wills
California Gov. Jerry Brown recently signed legislation that modifies and clarifies the state’s existing laws applicable to pour-over wills. The current law, codified in California Probate Code 6300, says a pour-over will is only valid if it refers to a trust “executed before or concurrently” with the will itself. Under the new law, known in the legislature as Assembly Bill 309, a person may now execute the trust up to 60 days after the pour-over will.
The sponsors of AB 309, which included the California Bar’s Trust & Estates Section, said the reason for this change was that there are cases in which a person may need to “execute their will or more days prior to the trust.” For example, there may not be a notary immediately available to notarize the trust, so it is not signed until two or three days after the pour-over will. According to the sponsors, “This technical difference in execution time should not be grounds to defeat a decedent’s intent.”
Need Help Making a California Will or Trust?
One note about the notarization example. Legally, a trust does not have to be notarized. However, it is common practice to do so in order to prove the trust was actually signed by the grantor. Other states may also refuse to recognize a trust that is not notarized. A will must be witnessed by at least two people but also need not be notarized.
Creating a pour-over will and a living trust is not complicated, but it does involve a number of technical details. An experienced San Diego estate planning lawyer can walk you through the process and help you create a trust that meets the needs of you and your family. Contact the Law Office of Scott C. Soady today at 1-877-435-7411 to schedule a free consultation to discuss your estate planning needs.