We both want our surviving spouse to be free to completely use or liquidate the assets unless we die in a common disaster.
A: Then an A/B disclaimer trust with language that permits the surviving spouse to use both principal and income from the decedent's trust would permit this outcome.
Do you practice in California?
A: I am a member in good standing of the State Bar of California. However, I am not taking cases at this time (retired).
The reason we are considering Revocable Living Trusts is to avoid probate expenses. All real estate assets are currently held JTROS. All bank accounts are held jointly. It sounds like we should only fund a new revocable living trust with one small bank account to establish it. Then if we die in a common disaster, the assets from our separate pourover wills could be placed into the revocable trust that would then become irrevocable.
A: If all of your assets are held jointly with rights of survivorship, and neither spouse cares who the surviving spouse chooses as beneficiary/ies after his/her death, then you don't need a trust, because all of the jointly held assets will automatically transfer to the surviving spouse. There will be no other assets to probate (except for your personal effects, which no one ever probates, unless those effects happen to contain Faberge eggs, Van Gouge paintings or Tiffany lamps).
A "pourover" will must be probated, so any assets not funded to a trust, if those assets exceed $150,000 in gross value, or they are held by an entity which requires letters of administration from a court, must be probated before they can be placed into a trust. The purpose of a pourover will is to provide for the incidental omission of assets which would otherwise be subject to a final distribution different from that which is required by the parties' estate plan, as described in their joint revocable trust.
Every competent estate plan contains both a pourover will for each spouse, and a joint revocable trust.
BotXXXXX XXXXXne, you have fairly typical estate plan requirements. Each of you can execute a pourover will, and a revocable trust, if you have valuable assets which are not held JTROS, and you can assign or title those assets to yourselves as cotrustees.
Hope this helps.