The term “living trust will” is not really a legal term. However, a lot of people use the term when they are first investigating a living trust. People are used to having a will distribute property after the death of the person making out the will. The confusion probably comes, because people know that the trust will distribute property after a death. In a sense, a living trust is a substitute for the standard will.” A living trust and a will are two separate items. So, when the term “living trust will” is used, as a lawyer, I am not sure what is being referred to. There is a legal document called a living trust and a different legal document called a will. Actually, there should always be a will accompanying a living trust. It is called a “pour over will.”
A pour over will serves as a failsafe mechanism for living trusts. Trusts are often referred to as “living revocable trusts” or “revocable living trusts,” because they are always revocable. That means that the maker of the trust can revoke the trust and move everything back to status quo anytime he or she wants.” People use trusts to avoid probate and get more value to their heirs without paying any estate taxes.
A revocable trust only avoids probate if it is properly managed by the person who sets it up. Most people who get a living trust do not avoid probate. There is a legitimate argument in the legal community against this, because so many of them fail to give the probate protection that was “sold” to the family. This isn’t a problem with the trust. It is a problem with the attorneys and how they educate their clients. Most of them don’t give the client enough education, and they don’t know how to “use” their trust, so the it fails to avoid probate.
When the the trust fails to protect the family against probate, the deceased’s assets need to be probated. That means the family has to go through the probate process. If the deceased had a will, then the court will use the will to guide the probate process. If there isn’t a will, the court will treat the case as an “intestate” proceeding. Intestate means that there isn’t a will.
When you get a revocable living trust, you should also get a pour over will. If for some reason assets need to be probated, the pour over will can be used by the courts to guide the probate process. Hopefully, the pour over will won’t ever be used, because the trust will avoid probate on all of the decedent’s assets.
Pour over wills don’t make a distribution of the property, as standard wills do. Once the property is probated, a pour over will directs the court to “pour over” all of the property into the revocable trust, so that it can be distributed according to the terms of the trust.