If I have a Trust, Why Do I Need to Sign a Will?

One of the main reasons you signed your living trust is to be sure that your estate avoids probate. Probate, as you know, is the court-supervised process by which an estate is managed and ultimately distributed to named beneficiaries. A probate is necessary when an individual dies either with a will or with nothing.

If your assets are in your trust at the time of death, your will plays virtually no role. While it must be lodged or filed with the Superior Court within 30 days of the date of death, it is all but ignored.

Nevertheless, you sign a “pour over will”, just to be on the safe side, even if you have a trust. Your will says, in effect, that any assets you forgot or neglected to put into your trust are to go into your trust at the time of death under terms of the will. This is necessary because assets in your name (rather than in the name of your trust) are outside of and are not controlled by your trust. Some additional steps must be taken to get the asset into your trust. That is the role of your will.

If the total value of assets in your name and not in your trust at the time of death is under $150,000, probate is still unnecessary. There is a relatively simple procedure that can be utilized to get those assets into the trust. If the value exceeds $150,000, a probate process will be necessary.

Think of your pour over will as a clean-up document. If there is nothing to clean up – if there is nothing in your name and outside of your trust at the time of death – it plays no role. If there is such an asset, the will goes into effect and simply ensures that the terms of your trust will ultimately be respected.

Note: This article provides information, it does not constitute legal advice.

Gilfix & La Poll Associates LLP attorneys practice elder law and estate planning and are available to answer any questions about Trusts, Durable Powers of Attorney for asset management, Advance Health Care Directives, and any other appropriate planning options.