Legal Question in Wills and Trusts in California

If the priciple expressly writes in the power of attorney for his agent to have full power and act as his alter ego, can the priciple expressly state that the agent has same powers while manageing trust property after the principle dies?

Can my father elect me trustor, sole trustee of his trust and have complete control of trust while principle is alive? Also, The day the priciple dies, and I find out the trust was never funded with property, does that mean the trust failed? Then do you use the pour over will and go by what it says? Thank you everyone


Asked on 2/15/12, 3:46 pm

2 Answers from Attorneys
Jennifer Rouse Meissner Joseph & Palley

Powers of attorney die with the principal and have no legal effect after death. There are also only limited things that an agent under a power of attorney can do in regards to a trust. Again, those powers would only exist while the principal is alive.

A trust does not "fail" due to lack of funding. If you have specific facts and documents, you may be able to file a petition under Probate Code Section 850 and ask the court to issue an order that the assets are part of the trust. If you do not the necessary facts and documents, then you have to probate the assets which would be distributed to the trust if there is a pour-over will.

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Answered on 2/15/12, 3:56 pm
Anthony Roach Law Office of Anthony A. Roach

I agree with Ms. Rouse, as to the power of attorney issue. A power of attorney is automatically revoked upon the death of the principal, and is not a substitute for a will or a trust.

I disagree with the funding issue. A trust that is not funded is not a trust, because there was nothing for the trustee to hold. My answer would be different if it were a testamentary trust, that was funded at death.

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Answered on 2/21/12, 11:57 am


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