In California,I have a Will and a Trust made by very competant attorneys, in which my assets are NOT in the Trust, but there is langage to automtically place them in the Trust upon my death. A different trust attorney advised me that if I do not place all the assets in the Trust while alive, the Will will go into probate couirt before any assets can move to the Trust. Is this correct?
2 Answers from Attorneys
The whole point of a Trust is to use the Trust to hold your assets as this is the surest way to avoid Probate. You may have a Schedule of Assets listing your assets as belonging in your Trust or even a Declaration of Trust declaring your intent to have assets be Trust assets. This may allow you to have the assets deemed Trust assets by way of a Petition to the Probate Court, which is certainly faster and usually much cheaper than Probate, but re-titling your assets avoids even this Petition step and is certain, whereas the Petition is not nearly as fool proof.
You should meett with an attorney to assist you in properly funding your trust.
You have what is called a "pour over" will, because it pours any assets not in the trust over into the trust upon death. As Mr. Feldman says, however, it requires a Probate Court process to make that move effective. You may be able to short-cut from a full probate, but it needlessly complicates the settling of your estate. That is why in all but the most unusual situations you would want all your assets in the trust now, and use the pour over will only to scoop up any assets that are mistakenly omitted.