Legal Question in Wills and Trusts in California

The trust and the will would have to be reviewed to give you an answer.

I'm sorry for your loss. If the will was a "pour-over" will, it typically means that all the assets that she owned are to be left to the trustee of the trust that she created.

The trust should come into effect and be enforceable. However, the method of transfer of her assets, if enough, should go through probate.

The trustee of her trust should, after receiving the property through probate, distribute the assets pursuant to the terms of the trust.

Let me know if you would like to discuss this matter.

Caleb

J. Caleb Donner

DONNER & DONNER

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If your mother is still alive, then she can always fund the Trust now. If your mother has passed away, then you really need to consult with an attorney. It is sometimes possible to transfer assets that were intended to go into the Trust into the Trust even after the person has passed away. The advantage of doing that is that you can avoid Probate, which can be costly and takes time (depending on what assets your mother had). Otherwise, the Will would have to be Probated and then the trust would be funded from the Probate and presumably the Trust contains a distribution scheme. Again, it would be best for you to meet with an attorney who can review the specific documents and give you specific advice for your situation.

I agree with Mr. White. Trying to tell anyone the effect of estate planning documents without reviewing them is like trying to shot a pea on a rocking ship with the lights out. You might know which direction to point, but that's about it. So with that said, here's the general direction: By "spill-over will" I think you mean "pour-over will." A pour-over will is one that funds the trust through a will after the person dies. Normally it is used only to sweep any assets that are not put into the trust before death into the trust. Unless it is a spendthrift trust or other trust that is intended to continue on for some time after the trustor's death, there really is little point in a pour-over will into a trust that is intentionally left unfunded, since the will still needs to be probated and you may as well just distribute your estate by will. If, however, there is an accidentally empty trust and a completel pour-over will, there is a good possibility that all or most of the estate will be sent to the trust from probate and then distribution will be by the terms of the trust.

If there was a general assignment of assets as part of the trust, a full probate might not be needed- possibly the Trustee could file a Petition to Confirm Trust Assets (commonly called a Heggstad petition). The other attorneys are correct; you should have an attorney review the documents.

First, allow me to express my condolences to you for your loss. If done properly, the will (often referred to as a pour-over will) and trust are designed to work together. Although you state that the trust is unfunded, there may be a way to transfer the assets to the trust with a court petition or have the court declare the certain references assets are actually trust assets. Without reviewing the estate planning documents it is impossible to which ones are effective and which ones are not, which ones have priority over other ones, or the options to proceed with administerting the estate.

From your post, it appears that you are here in La Jolla. Our office is close by and we would be happy to provide you with a free 30 minute consultation.

DISCLAIMER

This reply constitutes legal information for education purposes and does NOT constitute legal advice nor establish an attorney-client relationship. We will only represent you based on a written retainer agreement. Therefore, you should contact this office to discuss representation if you do want legal advice/representation.

Ronald R. Webb, Esq.

Law Offices of Ronald R. Webb

5440 Morehouse Dr. #3700

San Diego, CA 92121

858.558.1191 Phone

858.777.3568 Fax

[email protected]