Do I Need a Will if I have a Trust?

A simply but very common question we hear from our clients looking to create an estate plan is, "Why do I need a will if I have a trust?" You might be thinking the same thing. If the main reason to have a trust is to avoid probate, then why do I need to have a will as well if a will does not avoid probate? Our recommendation is always, yes, you should have a will even if you have a trust for 3 very important reasons.

One note before we go further, the type of Will we are referring to is a pour-over will. It's similar to a typical last will and testament. In fact, it will even say last will and testament. However, where your distribution would normally be, there will instead be a "pour-over" provision where all your assets are designated to be a part of your trust estate and distributed according to how your trust's distribution is laid out. Essentially, it says all my stuff - furniture, tools in the garage, pictures on the wall - go to my trust over there.

This brings us to the first, and most important, reason for having a will with your trust is that it serves as an essential safety net. Yes, a will does not avoid probate like a trust does. However, you know what also does not avoid probate? Having an asset subject to probate, that is not sheltered or titled into your trust. If an asset, such as real estate, is in your name as an individual, and not the trust, then your family will need to go to probate to pass on that property. In that case, having a pour-over will allows your family to have the judge issue an order to distribute the property to the trust, so that it can then be distributed according to the distribution plan you have there. If you don't have a will, then anything caught outside your trust requiring probate will then be distributed how the probate code says it should - not what you designed in your trust.

Next, the pour-over will is also what provides the legal backing of your successor trustee of your trust also administering your personal items and smaller assets not titled into the trust - your regular checking account or a regular car for example. That is, assets not valued enough to trigger a probate, $166,250 here in California. Keep in mind, this amount will vary by state. You will typically also sign either a schedule or a stand-alone assignment of your property to your trust to ensure all your assets are "in trust" when you pass away. A pour-over will, would essentially function in the say way - your assets not in trust, are to be distributed to your trust at your passing and thus further distributed according to the trust.

In the overwhelming majority of circumstances, these two reasons do not happen, which means your pour-over will never really gets invoked. One reason was a safety net for the rare instance where something goes wrong. The other is legal backing for authority that is rarely ever at issue, that is until someone lawyers up and decides to cause a problem. However, the last reason to have a will with your trust is going to be situation specific but extremely important for those it applies to - nomination of guardians for minor children.

In your will, alongside distribution plans and executor nominations, you will also nominate who you wish to become the guardian of your minor child or children should you pass away prior to them reaching age 18. You can also designate separate guardians for the child's caretaking and their finances, but most folks nominate someone to be the guardian over everything.  You cannot do this in your trust. It must be done in your will.

Additionally, and this is something you may have picked up on if you have been listening carefully, this is only a nomination, not a designation. Someone becoming the guardian of a minor child is going to take more than me simply writing down that I think this person should be it. A court will need to be involved and they will need a judge's order to authorize the guardianship. However, your written word will carry great weight should your children be in that situation.

In summary, yes, you should still have a will with your trust. It provides a safety net for assets erroneously left outside the trust and subject to probate after your passing; it gives your successor trustee of your trust authority to administer all your assets; and it is where you can nominate who you wish to become the guardian of any minor children you may have.

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