April 26, 2007

Ask The Lawyer

You probably need a will as well as your living trust

This week's question:
I read your column quite regularly and I see that you discuss living trusts on occasion, but you don't mention wills very often. Is this because a will is not needed if you have a living trust? Would my husband and I save some money by not having a will? If you have a will, what are some of the points you need to cover?

Jenna J.
Almaden Valley


Dear Jenna:
Well, those are excellent questions, Jenna. Let me see if I can address each one of them.

Just what is will, anyway? A will provides for the administration and disposition of your property upon your death. If you have a living trust (and most Almaden Valley residents should have one), the will is called a "pour over will" because it provides that all of your property remaining after payment of your liabilities, expenses of estate administration, and estate taxes (if any) will pass to the trustee of your revocable "living" trust.

Your will governs only your property subject to probate, commonly referred to as your probate estate. Your probate estate does not include property transferred to your revocable "living" trust during your lifetime, or assets that will pass under the terms of other agreements, such as retirement benefits and life insurance proceeds, except where you have designated your probate estate as your beneficiary under those agreements.

Your probate estate also will not include joint tenancy property, which passes to the co-owners by operation of law.
If, during your lifetime, all of your property has been transferred to your revocable trust, then it likely would not be necessary to submit your will for probate. The will is nonetheless needed because some of your property may not have been transferred to your living trust, or new property may be discovered.

For example, we had a case in our office recently where we did a living trust and will series of documents for a single woman several years ago. We transferred her house at that time to her as trustee of her new living trust.

She later moved to another county and purchased a new house. Unfortunately, she simply forgot to put title of the new house in her name as trustee of the trust. She later died with the house in her own name, but not as trustee of her trust. Now, her two daughters, executors of her estate, need to go through a probate estate of the house, costing the estate (the daughters) several thousands of dollars in needless attorney's fees, probate costs, stress and lack of privacy. Rather regrettable, but a true story. (And, for my attorney friends, a "Heggstad" petition wouldn't work.)

As to the main points to cover in a will, you will want to name an executor and possibly an alternate just in case. You may want to waive bond for the executor since a trusted family member may not need to be insured, if you will.

If you have a revocable "living trust", you will want to say that all property passing through the will passes on or "pours over" into your revocable trust to be administered under the terms of the trust agreement.

You will want to specify in your will for the payment of estate taxes, if any, and whether they will be apportioned. If apportioned, the persons receiving your property pay their own fair share of estate taxes.

The powers of your executor will also be stated in your will, and presumably that your executor is authorized to administer the probate estate under the California Independent Administration of Estates Act. This means that the executor only needs court approval to perform a limited number of specified acts, such as making distributions.
Of course, if you want to specifically disinherit anyone that should be covered, such as all persons not named in your will, or a specifically named individual. A good "no contest" clause is also necessary.

When the will is ready to sign, you need to sign it in the presence of at least two witnesses. The witnesses need to sign in your presence and in the presence of each other, all staying and signing in the same room at the same time until everyone has signed. As witnesses, we sign a declaration under penalty of perjury that this is true and we tend to take that oath rather seriously—for obvious reasons.

Witnesses to your will need to be adults and have no potential interest in your estate or living trust. After the will is fully signed and properly witnessed, you will want to keep the original in a very safe place, such as a bank deposit box.

You would probably not save very much money at all if you would not have a will to compliment your living trust. In fact, I would have a client sign a letter to the effect that I am not responsible for adverse consequences of this decision.

As always, talk these issues over with your own attorney. He or she is in the best position to cover each and every one of them for you.

I hope that answers your questions, Jenna. And thanks for reading this column quite regularly! It is appreciated.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.