A Will is a document that you sign now that describes how you want your assets distributed on your death. A Pourover Will is a Will that gives all of your assets on your death to your Trust. It also nominates someone to be your Executor in order to make those distributions and to pay your debts.
What is a Pourover Will?
A Pourover Will is a Will that names your Trust as your Beneficiary.
How is a Will different from a Trust?
A Will is effective only on your death. A Trust can be effective both during your lifetime and after your death.
A Will governs “probate assets,” which are your assets that are in your name alone and that do not have a Beneficiary designation. A Trust governs assets that you transfer into the trust estate.
If you have a Will and no Trust, your loved ones will have to open a probate in court in order to carry out your wishes. Assets that are transferred to a Trust do not have to go through probate.
A Will is a simple document that primarily does 3 things: it nominates someone to manage your money after your death, it provides guidelines for that authority and it says how you want your assets distributed after your death. A Trust is a more complex document that does those things, but it can extend the duration of the distribution, it can provide for your surviving spouse during your spouse’s lifetime and sometimes a Trust can take advantage of tax benefits. There are also other reasons to have a Trust that are not within the scope of California Trust Online’s website.
Is there anything that a Will can do that a Trust cannot do?
Yes. A Will can govern assets that are not in your trust estate. A Will can also nominate someone to be the guardian of your minor child(ren).
Do you need a Will if you have a Trust?
Yes. If you have a Trust, most likely, you will need a pourover Will to go with your Trust. A pourover Will is a special kind of Will that gives your probate assets to your Trust. You can think of is as a back-up to your Trust. A Trust governs only those assets that are transferred into the Trust. Sometimes people forget to transfer assets into their Trust, and sometimes mistakes are made so that assets are not actually transferred into the Trust. In these cases, a pourover Will “pours over” those assets into the Trust. This helps to preserve your distribution plan.
I have very little money, and I don’t have a Trust. Do I need a Will?
Yes. By writing a Will you get to choose who gets your things after your death and who will manage your assets after your death. Even if you do not have a lot of money, you may still want to make sure that it gets to your loved ones after your death.
What happens in a probate?
If you have a Will without a Trust, most likely your loved ones will need to go through probate after your death to fulfill the terms of your Will. A probate is a court-supervised process that appoints an Executor to manage the estate, gather and inventory your assets, pay your debts, and then distribute what is left over.
The person you choose as your Executor will not have the authority to act as your Executor until the court appoints that person as your Executor. This means that the person you choose as your Executor will not have access to your accounts and will not be able to take control of your assets until they are appointed by the court.
Your loved ones will need to prepare a petition for probate and to file this petition with the Superior Court in the county where you have died. They will need to provide the court with a list of your assets and have a court-appointed referee value those assets. They will need to provide the court with a list of your creditors and to give notice of the probate to those creditors. Your Executor will have to pay (or explain why the Executor did not pay) your creditors. Your beneficiaries will not get their full distribution until the court approves the distribution.
Can I name a Guardian for my minor child?
Yes, if you have a child younger than 18, you should choose a Guardian for your child. You should also choose at least one person to be an alternate Guardian in case your first choice is not available to be your children’s Guardian any time after your death and until your child reaches 18 years old.
How do I choose a Guardian for my minor child?
This is probably the most difficult decision that a parent can make, but it is also the most important protection a parent can give their child. When choosing a Guardian, many parents look for someone with similar personal values. It is also important to consider whether you want your child to remain in California after your death so that they can continue in their school and remain close to family and friends in California. Many parents consider the age and health of the Guardian to ensure that the Guardian is physically able to take good care of their children. Some parents may want to choose a family member or close friend with children of similar ages to their own children.
Who are Executors?
An Executor is the person who manages your probate. In your will, you will nominate the person that you want to be your Executor, but that person does not have any authority to do anything unless a judge approves of the person and appoints them to be your Executor.
What information do I need to name someone as my Executor?
You will need your Executor’s full name and residence city and state.
Can I choose Co-Executors?
Yes, you can choose up to two people to be your Executors at the same time.
Can I choose alternate Executors?
Yes, you SHOULD choose an alternate Executor in case your first choice is not available.
Do I have to list who gets my assets on my death?
Yes. This is one of the main reasons to have a Will—to choose for yourself who gets your assets after your death.
Can I give dollar amounts to my Beneficiaries?
You can give a specific dollar amount to your Beneficiaries. However, we recommend that you give percentages instead because you do not know what you will own on your death. If you decide to both give dollar amounts and percentages, the dollar amounts will be distributed first. So, your specific dollar amount gifts should be small so that your percentage Beneficiaries get as much as you intend them to.
Can I give money to charity?
Yes, you can give money to people and to charities. Please be very specific about the charity you choose because many charities have similar names.
Do I have to name my Beneficiaries?
You can either identify your Beneficiaries by name or by class. Class is the general description of a group, such as “all of my grandchildren living at the time of my death” in the gift of “50% to be divided evenly between all of my grandchildren living at the time of my death.”
Someone is making me sign this Will. What should I do?
If anyone is pressuring you to make this Will and you do not feel comfortable signing it, you should call the Eldercare Locator at 800-677-1116 or 911.