Most of the living trusts I draft are what’s called a pour over will,
which is simple, and says that anything that’s not in my trust when
I die is hereby given to the trustee of my trust; in other words, it pours
over everything outside of the trust into the trust, although that only
happens when you die.
It’s important to understand that, if more than the $150,000 threshold
remains outside of the trust, that will have to go through probate, so
it’s important to get all of your valuable assets into the trust
before you die. The pour over will alone will not avoid probate. To accomplish
that you need to get your assets into the trust before you die.
When a married couple comes in, I’ll draft a single trust for both
of them, but I will draft a separate pour over will for each of them.
At the same time, I usually encourage them to execute what’s called
an advanced healthcare directive, in which you specify what you want to
happen with regard to medical treatment, or if you become disabled and
cannot specify for yourself, who you want to make those decisions for
you. Sometimes that’s called a living will, but under California
law, it’s called an advanced healthcare directive.
The advanced healthcare directive will also describe your end of life preferences,
what sort of measures you want or don’t want, your preferences as
far as organ donation and things like that. I encourage people to execute
one of those at the same time and generally send them a form to do that,
since there is a form that’s specified by California law; it’s
something they can do themselves and they don’t have to pay me to
do that for them. Those are the three documents that I’ll discuss
with my clients when they come in and we talk about the living trust;
the trust, the pour over will and the advanced healthcare directive.
If someone is single, except for the living trust only being for one person,
everything is exactly the same.
If they’re wealthy enough that estate tax planning is a factor, they
will need some relatively sophisticated provisions in their trust. This
makes it more time consuming for the attorney to draft and more expensive
for the client.
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