A testator’s use of a living trust to hold property that remains after the estate is distributed to beneficiaries is useful as it can avoid the probate court process, additional attorney’s fees, and may yield certain federal estate tax benefits. In this way, a well-drafted will that sets up a trust can avoid probate but a poorly drafted one may still pass the estate through probate.
Different jurisdictions have adopted their own approaches to pour-over wills. For example, California recently modified its laws to permit trusts to be created after pour-over wills. The California Probate Code § 6300-6303 now allows a testator to create a valid devise by will to a trustee of a current or future trust, so long as the will identifies that trust and the testator drafts another written instrument that stipulates the terms of the trust, which is to be executed before, concurrently with, or within 60 days after the will is executed. Such a devise is not invalidated if amended after the will is executed or after the testator’s death.
[Last updated in July of 2020 by the Wex Definitions Team]