Posted On: July 17, 2012 by Theodore M. Hankin

What If I am Really Careful About Funding My Trust; Do I Still Need a Pour-Over Will in California?

The short answer, if you have minor children, is yes.

Even though you may have created a revocable living trust and you have been diligent about funding it, a revocable living trust is essentially a vehicle for managing assets. It is not the place where you name guardians for minor children.

Generally, a minor (anyone under 18 years of age) cannot directly own property or enter into contracts in California. Further, as every parent will tell you, young minors are incapable of living on their own.

In California, if a minor loses their parents (e.g. both die), the person responsible for then raising the minor is referred to as a "guardian". There are two types of guardians, a guardian of the "person" and a guardian of the "estate".

A guardian of the person has the responsibility to take care of the physical person of the minor, while a guardian of the estate has the responsibility to take care of the finances of the minor (to the extent that the finances are not managed by a trustee or custodian).

The place for a parent to nominate guardians is in a will. If you have minor children, and you want to have some say over who will care for your children in the event that you and your spouse die while the children are minors, even though you may have a trust, you must nominate those who you would choose as guardians in a will. Otherwise, it will be up to the court to decide (and you might not like the court's choice) who the guardians will be for your children.

Even if you are satisfied that you don't need a will or trust because your estate is not large or you are satisfied with the disposition of your assets without a will, if you have minor children, do them a favor: nominate guardians for them in a will and don't leave their care to chance.

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