By Robert J. Green, Esq.
For those who want to avoid the court-controlled process that takes place after a person’s death (known as “probate”) – using a Revocable Living Trust is typically the best way to do so. This document allows a married couple or a single individual to direct what shall happen to their assets and possessions. It will also indicate who will be in charge of carrying out those instructions, without the need for the involvement of a probate court judge.
If you don’t have a Revocable Living Trust, a Last Will and Testament (commonly called a “Will”) is the traditional document you would use to leave instructions regarding what should happen to your possessions and assets when you die (who gets what). It also indicates who it is that you have selected to carry out your wishes (who’s in charge).
So, if you are using a Revocable Living Trust to take care of these matters, why would you still need a Will? There are at least two reasons.
First, your Revocable Living Trust will only apply to those assets and possessions that you have actually placed into the Trust (called “funding the Trust”). When you first establish your Trust, a good estate planning attorney should assist you in getting all of the assets that need to be in the Trust into the Trust. However, as time goes on, you may acquire new or different assets or possessions and you may not remember to place those into the Trust. This can also happen as the result of mistakes or oversights by third parties. Whatever the reason, sometimes assets and possessions that should have been in the Trust are not
If you pass away and there are assets outside of the Trust, those assets may have to go through the court-controlled probate process. This, of course, is what you were trying to avoid in the first place. It is made so much worse, however, if you also do not have a Will in place. This is because those assets that now must go through probate will be distributed according to state law rather than according to your individual wishes.
This problem can be avoided by having in place what is commonly referred to as a “Pour-Over Will.” A Pour-Over Will is a little different from a traditional Will because it will give instructions to place any of your assets that were not in your Trust into your Trust as soon as possible. This type of Will still has to go through the probate process, but probate will only apply to the assets that were left out of the Trust, and can typically be probated less formally. While the goal in using a Revocable Living Trust is to avoid probate altogether, a Pour-Over Will is an important “just in case” tool that users of Trusts should have in place.
For parents of minor children, there is a second and very important reason to have a Will, even if you have a Revocable Living Trust. A Will is the place where you nominate the person or people who should act as guardian(s) for your minor children if both of the child’s parents are deceased or otherwise unavailable. Leaving that determination to be made without your input is unfortunate and unnecessary.
Still confused about what you need? Discuss your goals with an estate planning attorney to help you determine what documents you have and what you may need. Some law firms, like mine, will even offer free consultations to potential clients concerning probate, wills, trusts, and other estate planning maters. Never hesitate to get specific advice for your specific situation.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.