When you die, all of the assets and personal property that you own are going to be divided into one of two categories — either probate or non-probate property.
Jump ahead to these sections:
- What’s a Pour-Over Will?
- When May You Need a Pour-Over Will?
- How Do Pour-Over Wills Work?
- Pour-Over Wills: Frequently Asked Questions
Non-probate property includes the many forms of property that automatically transfer to another person upon your death, such as life insurance, joint bank accounts, retirement accounts, and trusts
This will include any assets that you already placed in trust before your death.
Probate property includes all property, like what you include in your will, what you did not include in your will that remains in your estate, and what's left in your estate if you die without a will — if you die intestate.
Much of your property may be transferable at death as a non-probate distribution but most people die with probate property in their estate. The court must oversee the administration of this property through the probate process. Only probate property gets administered through the probate process. Non-probate property does not.
One way to join your probate property and your non-probate property after your death is through the use of a pour-over will.
What’s a Pour-Over Will?
A pour-over will is a testamentary document that becomes effective upon your death, just like a normal will. In fact, it is a normal will, except that it provides for a single beneficiary to receive all the assets in your probate estate. That beneficiary is a revocable living trust that you have already established during life.
A pour-over will takes the assets in your probate estate and “pours” them over to your existing revocable living trust. Although your pour-over will is still probated, it makes the probate process easier for your executor (the person you name in your pour-over will to administer your estate) and ensures that the entirety of your estate goes to the persons you named as beneficiaries of your trust.
When May You Need a Pour-Over Will?
You will want to have a pour-over will whenever you have a revocable living trust that provides the entirety of your estate to named beneficiaries. This is a trust that you create during life.
During life, you will most likely place your assets into your revocable trust as a resource for avoiding probate. However, it is the rare person who dies with all assets in trust. There is usually some property that must be probated, either through a will or through intestate succession.
Intestate succession is the probate process that applies when someone dies without a will. Intestate succession will distribute your probate estate to your closest living relatives. This defeats the purpose for which you established the revocable living trust.
However, a pour-over will enables you to take any property remaining in your estate when you die and transfer that property to the beneficiaries you have already chosen for your revocable living trust. It avoids passing any property to your closest living relatives (also referred to as intestate heirs).
How Do Pour-Over Wills Work?
Pour-over wills operate like any other will. In fact, you may have a traditional will that simply has a pour-over provision in it. It is this pour-over provision that makes a traditional will a “pour-over” will.
In your pour-over will, you will designate whatever property is left in your estate to the revocable living trust that you have already created. When you die and your will is probated, the court will transfer the property held in your estate to the trust. The trustee then possesses the property and may distribute it according to the terms of the trust.
For example, if a husband and wife want to distribute their entire estate to their children when they die, they might create a revocable living trust to do this and name themselves as co-trustees. They would then transfer their assets into the trust and control the assets as co-trustees. They also may create individual pour-over wills directing that any of the assets in their estate at the time of their death will “pour over” to the trust. By doing this, if one of the spouses dies, their property will be transferred into the trust and the surviving spouse will continue to act as trustee.
As the trustee of the trust, the remaining spouse has possession of the deceased spouse’s property and can use the property during the remainder of their life. When the surviving spouse dies, their assets are transferred to the trust as well. At that time, the trust benefitting the children will own all of the property. The successor trustee named in the trust can distribute the trust property accordingly.
Pour-Over Wills: Frequently Asked Questions
Many people know what a will is and perhaps what a trust does, even if they do not know the details of how each one operates.
However, most people have never even heard of the term “pour-over will” and have no concept of how a revocable trust and a pour-over will might operate together to accomplish specific estate planning goals. However, once you understand the basic concept of a pour-over will, you will see that it serves a very simple purpose and operates just as any standard will normally operates.
Here are several questions and answers that may help you understand how pour-over wills work.
Does a pour-over will need to be probated?
Yes. A pour-over will is still a will, and wills must be probated. When a court probates a pour-over will, however, all of the assets included in the pour-over provision are transferred to the revocable living trust, which is the beneficiary of that provision in your will. The property is then administered according to the terms of the trust.
How are pour-over wills different than traditional wills?
Pour-over wills are traditional wills but they have terms that differ from the terms normally found in a traditional will.
In a traditional will, the person writing the will (a testator) usually gives specific property to various beneficiaries named in the will. The executor of the will then directly distributes the appropriate property to the respective beneficiaries.
In a pour-over will, when the will is probated, the property passes to the trust, which is held for the benefit of the beneficiaries. It does not go to the beneficiaries directly. Rather, the property gets distributed according to the terms of the trust.
How do you get a pour-over will?
There are several ways to create a pour-over will that accompanies a revocable living trust. You can create a pour-over will the same way that you create a regular will. Consider the following steps to have a pour-over will:
- See an attorney. Anytime your estate planning needs involve a trust, it is advisable to see an attorney who can make sure these more complicated instruments are drafted correctly and are effective for your estate planning goals.
- Use an online will service. Some online will services are good for providing simple, short, and concise wills that do not include complicated legal issues or anticipated problems. If you have your revocable living trust already in place and just need to create your pour-over will, you may find some services that can provide this for you. You would print out the form and fill it in or fill in the form online and submit the form.
- Complete a “do-it-yourself” will. If you already have your revocable living trust in place and want a simple will to place your remaining property into your trust at your death, you may be able to draft your pour-over will yourself. Rules on the writing of wills vary from state to state, so you should know the laws applicable to wills in your state. However, the important part of a pour-over will (the provision that does the pouring) is simple to make. You just name the existing revocable living trust as the beneficiary of your estate.
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Pour-Over Will: A Perfect Complement to a Revocable Living Trust
Thinking about creating a revocable living trust that gives your estate to a named beneficiary or already have one? You also should have a pour-over will that complements the purpose of your trust. If you already have a will, then you should amend it to include a pour-over provision.
A pour-over will enables you to transfer to your revocable living trust any property that is held in your probate estate when you die. The beneficiaries of your trust then inherit the entirety of your estate and receive your estate according to the terms of the trust.