What Is a Pour-Over Will?

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DEFINITION

A pour-over will is a type of last will and testament that transfers property from the estate of someone who has died into a living trust for distribution to beneficiaries. Unlike distribution of assets that are moved into the trust during the creator’s lifetime, this type of transfer requires probate.

Definition and Example of a Pour-Over Will

A pour-over will, a type of last will and testament, acts as a backup provision to catch assets that a living trust’s creator, also referred to as the grantor, neglected to move into their living trust during their lifetime. It directs that this property should go into the trust. The trustee of the trust would then transfer the assets to the beneficiaries named in it.

Property that has not yet been placed into a trust typically is held in your own name. Your state’s probate court therefore would determine who receives it after your death under a process known as intestate succession if you leave no last will and testament.

Say you established a living trust and moved ownership of your assets into it. After you have an estate plan in place, you then purchase a plot of land. If you die before transferring the land into your trust, a pour-over will directs that the land can be removed from a probate estate and deposited into the trust for distribution to your beneficiaries.

How a Pour-Over Will Works

The purpose of a pour-over will is to ensure property intended for a living trust goes to the trust to be distributed to the intended heirs. This is accomplished when the grantor, the individual who creates the trust, transfers ownership of their assets to its trustee, the individual or entity that manages it. This process is called “funding the trust.”

The trust continues to hold ownership of these assets after the grantor dies. The trustee will either disburse them or continue to hold them within the trust for the benefit of its beneficiaries, depending on the directives included in the trust’s formation documents.

Assets that aren't transferred into the trust make up the grantor’s probate estate. When you die with a pour-over will, assets not in the trust still have to go through probate before they are placed in the trust, which is why pour-over wills are typically used as a backup strategy.

How To Create a Pour-Over Will

The first step in creating a pour-over will is to establish a trust into which it can direct ownership of assets and property. Consider consulting an estate planning attorney who can provide guidance on setting up as you intend.

Each state determines its own process for pour-over wills. Many states require that you form a trust before you create a pour-over will. But, for example, California recently changed its law to allow trusts to be created within 60 days from when the will is executed.

Trusts require an initial “corpus,” which is money or property it holds. You can typically deposit even a small amount, such as $10, to start a trust. If you have a pour-over will, you may not need to deposit any initial assets for your trust to act as a legal recipient of your property.

According to your state’s laws, you may be able to buy pour-over will forms that you can simply fill out then sign with a witness. Consider consulting an attorney even in this scenario to ensure you’ve created a pour-over will correctly.

An Alternative to a Pour-Over Will

A pour-over will may not be necessary if you include terms in your last will and testament to form a testamentary trust instead. A testamentary trust is created after you die, according to your last will and testament, which directs the executor of your probate estate to form the trust and transfer all the property of your estate into it.

A testamentary trust would still require a probate process. Another downside to this option is that you’re trusting your named executor to set up the testamentary trust according to your terms.

To be sure your trust meets your needs, you can create it yourself during your lifetime. You can even change it periodically if circumstances change and the trust is legally revocable. Then, any extra assets can be moved into the trust via a pour-over will after your death, achieving the same end result.

Key Takeaways

  • A pour-over will transfers property into a trust after the trust creator’s death.
  • A pour-over will ensures that any property intended for your trust will be distributed to your beneficiaries per your wishes.
  • Assets transferred into a trust via a pour-over will are still subject to probate.
  • The trustee of the trust will distribute the property to beneficiaries according to the trust’s terms.

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Article Sources

  1. Legal Information Institute. “Pour-Over Will.”

  2. State of Connecticut, Office of the Probate Court Administrator. “Probate Court User Guide.”

  3. The Florida Bar. “Consumer Pamphlet: The Revocable Trust in Florida.”

  4. Cornell Law School, Legal Information Institute. “Pour-Over Will.”