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What is A Pour-Over Will?

It is a will that "pours-over" assets into a trust. It's often used with a living trust.

People who are seeking to create a revocable living trust (usually to avoid probate) may want to create a pour-over will.

Having all of your assets covered by one document has three main benefits: it's simple, it's complete and it's relatively private (unless someone legally contests it).

But is does have limits: California Probate code states that probate shall only be required with a pour-over will if the assets total more than $150,000 (with certain exceptions). The code also stipulates a 40-day waiting period.

If the assets total less than $150,000 the successor may immediately do the following according to California Probate code 13100:

  • "Collect any particular item of property that is money due the decedent.
  • Receive any particular item of property that is tangible personal property of the decedent.
  • Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property."

The $150,000 amount may not seem like a lot of money. However, certain assets are not subject to probate such as 401Ks, life insurance, and IRAs, assuming that the beneficiary has been named.

Of course if the property value exceeds $150,000 then the property must go through probate. This may also mean months of waiting for those designated as successors.

Pour-over wills are a good idea for some, but not everybody. Thorough and complete estate planning can prevent a long hold-up in probate because all of your assets will be transferred to your trust while you are still living.

If you are unsure if you should create a revocable living trust with a pour-over will talk to an experienced tax attorney in your area.

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