It has long been settled that one via a will may effectively “pour over” one’s real and personal property into an inter vivos trust. See §2.1.1 of Loring and Rounds: A Trustee’s Handbook (2026), the relevant portions of which section are reproduced in the appendix below. But could a common law gift causa mortis of personalty also function as a funding vehicle? Recall that generally a present transfer of personalty via a delivered and accepted gift causa mortis was enforceable at common law, even though enjoyment was subject to the conditions subsequent of (1) absence of inter vivos revocation and (2) ultimate death as anticipated. That a common law gift causa mortis entails a present delivery by the transferor and a present acceptance by the transferee suggests that, at least in principle, the gift causa mortis should serve as an effective, albeit somewhat impractical, substitute for the “pour-over” will. The mechanics of funding via gift causa mortis? The property owner assigns legal title to the subject property to the trustee, not, however, for the benefit of the trustee but for the benefit of the beneficiaries as provided by the trust’s terms.
A cursory reading of Bryan v. Aymond as Trustee of Dalila Aymond Trust, 417 So.3d 96 (La. 2025) suggests as much, at least in Louisiana: “An addition of property to an existing trust by donation mortis causa is effective at the moment of the donor’s death.” See La.R.S 9:1936. But wait. Something is not right. There is the matter of word order. Under Louisiana law is a donation mortis causa the same as a donation causa mortis? Apparently not. A “donation mortis causa” is essentially the equivalent of a testamentary transfer, that is a transfer by will. Louisiana has not been receptive to the common law’s “gift causa mortis.” See Succession of Sinnott v. Hibernia Nat. Bank, 30 So. 233 (1901). So it seems that under Louisiana law one may not effectively add one’s personalty to the corpus of an inter vivos trust via gift causa mortis. On the other hand, common law gifts causa mortis generally are enforceable in a number of other states (U.S.), New York and Massachusetts being two. The Uniform Probate Code is agnostic as to the general enforceability of such conditional gifts.
As an aside, in Bryan, both the trial court and the dissenters on appeal had failed to appreciate that, postmortem, the designated recipient trustee in a pour over situation is burdened with a fiduciary duty to the trust beneficiaries to see to it 2 that the PR charged with administering the probate estate properly carries out his, her, or its fiduciary duties, this even before the trustee has taken physical possession of that portion of the probate estate to which the trust is entitled. We elaborate generally in the appendix below. See the final paragraph. And even when the PR and the recipient trustee are one and the same, as was the case in Bryan, the PR may not subvert the legitimate equitable property rights of the trust’s beneficiaries by engaging in unauthorized self-dealing.
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