Do I Need a Will and a Living Trust in California?

Yes. Even if you have a living trust, a complete estate plan generally still includes a will. The living trust is intended to hold and control many of your assets, while the will performs important functions that the trust cannot—including nominating guardians for minor children and providing a backup plan for certain assets left outside the trust.

In a trust-based estate plan, this backup document is commonly called a pour-over will.

Why Do You Need a Will If You Already Have a Living Trust?

A living trust and a will serve different purposes. They are designed to work together rather than compete with one another.

Two particularly important functions of the will are:

• Nominating the people you want to care for minor children if both parents are unable to do so
• Directing certain assets that were unintentionally left outside the living trust into the trust after death

This coordinated approach is one reason a trust is generally only one component of a comprehensive California estate plan.

What Is a Pour-Over Will?

A pour-over will is designed to transfer certain assets left outside your living trust into the trust after your death.

In other words, the will acts as a backup. Assets that should have been controlled by the trust but were not properly titled there may be "poured over" into the trust so they can ultimately be administered according to the trust's instructions.

For more information, read about pour-over wills in California.

Does a Pour-Over Will Avoid Probate?

Not necessarily. The pour-over will is intended as a safety net, not as a replacement for properly funding your living trust.

If an asset must pass through the will before it reaches the trust, that property may still be subject to probate. This can create additional delays, expenses, paperwork, and public court proceedings that proper trust funding was intended to avoid.

That is why the goal should be to properly title applicable assets in the trust during your lifetime rather than relying on the pour-over will to correct the problem after death.

Why Is Trust Funding So Important?

A living trust generally controls only the property that has been properly transferred or otherwise coordinated with it.

Your home, appropriate bank accounts, investment accounts, business interests, and other applicable property should therefore be reviewed as part of the planning process.

The firm's guide to funding a California living trust explains why a properly drafted but unfunded trust may still leave assets exposed to probate.

What About Assets With Beneficiary Designations?

Some assets pass according to beneficiary designations rather than through either the will or the living trust.

Retirement accounts and certain other financial products are common examples. These beneficiary designations should be coordinated with your overall estate plan so they do not unintentionally conflict with the instructions and protections you established elsewhere.

Learn more about coordinating beneficiary designations with an estate plan.

Can a Will Name Guardians for Minor Children?

Yes. Nominating guardians for minor children is an important function of a will that a living trust does not replace.

Parents should therefore not assume that establishing and funding a living trust eliminates the need for a will.

A Strong Estate Plan Coordinates Multiple Documents

Estate planning is not about choosing between a will and a living trust. For many families, the appropriate solution is a coordinated plan in which each document performs a specific function.

The living trust can serve as the primary vehicle for managing and transferring assets, while the pour-over will provides important backup protections and addresses guardianship for minor children.

Learn more about creating a California estate plan with Kavesh, Minor & Otis, or register for a free estate planning seminar to explore the role each document can play in your plan.