A devise or bequest, the validity of which is determinable by the law of Guam, may be made by a will to the trustee of a trust established or to be established by the testator or by the testator and some other person or by some other person, if the trust is identified in the testator’s will and its terms are set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator’s will, or in the valid last will of a person who has predeceased the testator (regardless of the existence, size or character of the corpus of the trust). The devise or bequest shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will

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CH. 7 TESTAMENTARY ADDITIONS

or after the death of the testator. Unless the testator’s will provides otherwise, the property so devised or bequeathed

(a) shall not be deemed to be held under a testamentary trust of the testator but shall become a part of the trust to which it is given, and

(b) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator (regardless of whether made before or after the execution of the testator’s will) and, if the testator’s will so provides, including any amendments to the trust made after the death of the testator. A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse.

SOURCE: California Probate Code, § 170; Uniform Testamentary Additions to
Trusts Act.

COMMENT: The Uniform Testamentary Additions to Trusts Act, which constitutes Article 1 of Chapter 7, has been adopted in at least 44 States. The purpose of the Act is to permit so-called “pour-over” wills: i.e., to allow a testator to set up a trust prior to his death, and provide in his will that his assets (in whole or in part) will “pour over” into that already-existing trust at the time of this death. Without statutory authorization such as that provided by the Act, the assets which are attempted to be “poured over” in this manner are considered part of the testa- tor’s estate, and are administered along with the rest of his estate. Under a statutorily validated “pour-over” will, on the other hand, those assets are not part of the probate estate for purposes of administration: they become part of (are “poured over” into) the previously-established trust, and are administered and disposed of according to the terms of that previously-established trust instead of by the terms of the testator’s will. This allows a testator much more flexibility in estate planning than he would otherwise have, and (in jurisdictions having death taxes) might provide a superior tax position.