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“Pour-Over Wills” and Probate in Orange County, California

What is a Pour-Over Will?

A “Pour-over Will” is created on or about the time a trust is created. The writer of the Pour-over Will decrees in the Pour-over Will that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of a trust.

For many reasons, not all assets are transferred into a trust when the trust is created. Some reasons are liquidity, convenience, or simply because they did not get around doing so before they died. Other reasons are negligence, mistake, and procrastination.

Is a Pour-Over Will Subject to Orange County Probate?

For assets not formally transferred into a trust, or not owned by the trust on the death of the trustor of the trust, a Pour-over Will may have to go through probate if probate assets are valued more than $166,250.

If not more than $166,250, you may be able to transfer certain assets to the trust by using declarations, such as authorized by California Probate Code § 13100 for personal property assets like money in a bank account or stocks. This is a simplified process to transfer personal property to your name. However, this process is not for real property, like a house.

What are Probate Assets?

The Pour-over Will controls only probate assets, i.e., assets that are not in a trust, not in joint tenancy, not being inherited by a surviving spouse, and not in an IRA or 401K with named beneficiaries. Probate assets are typically titled in the sole name of the decedent only.

Is There a Safety Net to Avoid Probate?

A 1993 California case, Estate of Heggstad, 16 CA4th 943, 20 CR2d 433 and a 2015 California case, Ukkestad vRBS Asset FinanceInc. (2015235 Cal.App.4th 156, provide help. See my article on Heggstad petitions in Orange County at: https://www.orangecountyprobatelaws.com/heggstad-petition.html.

Conclusion What happens if Orange County property is not in a trust at the death of the trustor or successor trustor depends on the facts of each case. If Orange County probate is necessary or not that is where I can be of help. I make a difficult and bewildering Orange County probate process as simple as possible. If you wish to gain more information on Orange County, California probate or if you need the general assistance of an Orange County probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions. You can reach me by phone at (949) 243-0406, by email at wksweeney@gmail.com or through my online contact form.

Client Reviews
★★★★★
Earlier this year, we were searching for an attorney to process a Heggstad Petition. We did a search on Google and read an article that was written by William Sweeney. The article was very clearly written and expressed almost the exact situation we found ourselves in, so I emailed William to interview him. He spent a good amount of time (for free) listening to the background of our situation...I highly recommend William for probate/Heggstad issues in California. Emma
★★★★★
I was searching for lawyer to assist me and my mother with my father's estate following his death. Some lawyers weren't willing to take a Heggstad Petition case but Mr Sweeney not only took the case but recommended it. In the end we were successful thanks to the efforts of Mr Sweeney and his paralegal Jennifer Fejzic. I would definitely recommend their services. Anonymous
★★★★★
Bill Sweeney and his incomparable paralegal Jennifer Fejzic represented and advised me through the probate of a parent's estate. Having practiced law myself for over 30 years, I expected expertise, precision, and wisdom -- all of which Bill and Jennifer richly delivered, promptly and at a reasonable, indeed more than fair, fee. I recommend Bill and Jennifer with gratitude and confidence. Greg