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A pour-over will is a necessary part of every
comprehensive living trust plan. It acts as a safety net by catching any assets
not included in the trust that normally would be subject to probate and "pours" it
into your revocable living trust.
While there are some assets that should not
be in the living trust at the time of the grantor's death, such as IRAs and Life
Insurance, most other property should be included. Unfortunately, nobody is
perfect and people often forget to include newly acquired property into their
trust.
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It is important to note that while a pour-over will provides a cushion for
missed property, relying on it too heavily can be a huge mistake.
California Law applies a statutory cap on the amount of ordinary assets which
can be transferred outside of a trust or other such technique, without
triggering probate. This means that if too many of your assets are transferred
through the pour-over will, probate will not be successfully avoided. The
current probate cap in California (2007) is set at one hundred thousand dollars.
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Our pour-over wills also include Guardianship Clauses. A Guardianship Clause
specifies to the court whom you wish to retain custody of your minor children
after your death. While not legally binding, such a clause usually plays a major
role in directing a family court judge in choosing your children's guardian.
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