Last Will & Testament / Pour-Over Last Will & Testament / Testamentary Trust

 

                    POUR OVER LAST WILL

                                       AND TESTAMENT

There is a major distinction between a Last Will and Testament and a Pour-Over Last Will and Testament.

Simply stated, a Pour-Over Last Will and Testament is a Last Will and Testament with a "pour-over" provision, or clause.

What's a "pour-over clause? When you die, this clause tells the world that you want any assets left outside your Living Trust, by accident or on purpose, to be made part of your Living Trust. It is important to know that only those items not held "in trust" at the time of your death will go through Probate. After the Probate Process, whatever is left "pours over" into your Living Trust.

As in a ordinary Last Will and Testament, you appoint Personal Representatives who will act for you after your death. These persons should be the same persons who are named as the Successor Trustees of your Living Trust. If you have minor children and wish to appoint someone as Guardian, you can do so by adding certain language to your Will. You may also use your Will to state your wishes regarding whether or not your body will be cremated. It is necessary to put your wish to be cremated in writing, since your Personal Representative will not be allowed to do so in some states unless it is stated in your Will.

NOTE: THIS SAMPLE FORM IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. LEGAL ADVICE OF ANY NATURE SHOULD BE SOUGHT FROM COMPETENT, INDEPENDENT, LEGAL COUNSEL IN THE RELEVANT JURISDICTION. ABSOLUTELY NO WARRANTIES ARE MADE REGARDING THE SUITABILITY OF THIS FORM FOR ANY PARTICULAR PURPOSE.

 

Pour-Over Last Will of __________ [name of testator]

I, __________ [name of testator], __________ [if known by other names, add: also known as __________ (name) and __________ (name)], of __________ [testator address], County of __________ [testator county], State of California, declare this to be my last will.

Clause One

I revoke all previous wills and codicils.

Clause Two

I declare that I am married and that my __________ [husband's or wife's] name is __________. All references in this will to my __________ [husband or wife] are to __________ [him or her]. I have __________ [number of testator children] children whose names and birthdates are as follows:

__________ born __________,_____
__________ born __________,_____
__________ born __________,_____
[Repeat as necessary.]

References in this will to "my children" include the children listed above and any children that may hereafter be born to or adopted by me.

Clause Three

I confirm to my spouse my spouse's one-half community property interest in all community assets passing under or outside of this will. I intend that this will dispose of all property subject to my testamentary power.

Clause Four

I give to my __________ [husband or wife], if __________ [spouse he or she] survives me __________ [if desired, add: for __________ (number) days], any interest I may have in the residence in which we may be living at the time of my death, subject to any mortgage or other encumbrance and all unpaid real estate taxes and special assessments which are a lien at the date of my death. If my __________ [husband or wife] does not so survive me, this gift shall lapse and my residence shall become a part of the residue of my estate.

Clause Five

I give to my __________ [husband or wife], if __________ [spouse he or she] survives me __________ [if desired, add: for __________ (number) days], any interest I may have in __________ [insert items desired, such as: household furniture, all furnishings and fixtures, jewelry, china, silverware, books, pictures, clothing, and all other items of domestic, household, personal use, or adornment, and all automobiles, boats, and other motor vehicles]. If my __________ [husband or wife] does not so survive me, then I give the property described in this Clause to my children in equal shares.

Clause Six

All the residue of my estate, I give to __________ [name of trustee; if corporate trustee add: a corporation, or any successor or assign of the corporation, whether by way of consolidation, merger, transfer, or otherwise], as trustee under that certain trust agreement, dated __________ [trust agreement date] wherein I am the settlor and __________ [name of trustee] is the trustee. I direct that such residue shall be added to and commingled with the trust property of such living trust and shall be held, managed, administered, and distributed under the terms and provisions of such trust agreement and any amendments thereto made prior to or after my death, it being my intention not to create a separate or testamentary trust nor to subject such living trust to the jurisdiction of any probate court.

Clause Seven

I appoint as executor hereof __________ [name of executor] __________ [if desired, add: to serve without bond] __________ [if corporate executor, add: a corporation, or any successor or assign of such corporation, whether by way of consolidation, merger, transfer, or otherwise]. I authorize my executor to sell, lease, or mortgage the whole or any part of my estate at either public or private sale, with or without notice, but subject to such confirmation as may be provided by law.

Clause Eight

If my __________ [husband or wife] predeceases me, I appoint __________ [name of guardian] as guardian of the persons of my minor children, to serve without bond.


I sign my name to this will this __________ [execution date, such as: First] day of __________ [execution month, such as: January], _____ [execution year, such as 1994], at __________ [execution location], County of __________ [execution location county], State of California, in the presence of __________ [name of witness], __________ [name of witness], and __________ [name of witness], attesting witnesses, who subscribe their names hereto at my request and in my presence.
 

[Signature of testator]

ATTESTATION

On the date last above written, __________ [name of testator], known to us to be the person whose signature appears at the end of this will, declared to us, the undersigned, that the foregoing instrument, consisting of __________ [number of pages in will] pages, including the page on which we have signed as witnesses, was __________ [testator his or her] will.


__________ [Testator He or She] then signed the will in our presence, and at __________ [testator his or her] request, in __________ [testator his or her] presence, and in the presence of each other, we now subscribe our names as witnesses.


We declare under penalty of perjury that the foregoing is true and correct.
 

__________, residing at ____________________
__________, residing at ____________________
__________, residing at ____________________

 

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C. Francis Baldwin
chasbaldwin@surewest.net
Updated Wednesday, May 26, 2004