A pour-over will is a special type of last will and testament used in conjunction with a trust-based estate plan. It can save the day when the grantor of a trust — the person who created it — neglects to transfer all his property into the trust over the years and has no other will to determine which beneficiaries should receive that omitted property. Let’s explore some common questions about Pour-Over Wills:
How does a Pour-Over Will work?
Instead of governing the distribution of all your property, a pour-over will simply states that any assets that have not been funded into your revocable living trust should go there at date of your death. It effectively names your trust as beneficiary of any property it does not already hold, and that does not pass directly to a living beneficiary through some other means, such as a beneficiary designation on a life insurance policy, banking or retirement account.
Does a Pour-Over Will require probate?
One of the beauties of revocable living trusts is that they avoid probate of the property with which they’ve been funded. Unfortunately, any of your property (tangible or intangible) that isn’t funded into your trust before you die will require probate, even if it’s directed to your trust via a pour-over will.
What if you don’t have any will, but you do have a revocable living trust?
Your property will pass to your heirs according to state law if you neglect to fund (or title) it into your trust during your lifetime, don’t create a pour-over will and don’t have any other will in place directing where those assets should go. These are called laws of “intestate succession,” and they can vary somewhat state-to-state. Each state has a list of kin so closely related to a decedent that they inherit from him by law for lack of any other estate plan. The list includes surviving spouses, your children (biological or legally adopted), grandchildren or even great-grandchildren, as well as your parents and siblings.This means that if you forget to fund your new vacation home into your trust, and you don’t have a pour-over will or any other type of will that directs the property to someone specific, that home might go to the son you’ve been estranged from for years if you’re not married, simply because of your blood tie to him.
Remember your Pour-Over Will should be a backup – not a replacement to a revocable living will!
Make it a point to sit down with your trust documents at least once a year or after a new milestone like marriage or birth. Make sure you haven’t acquired any new property over the last 12 months that should be funded into the trust. If you want a particular beneficiary to receive that new asset in the event of your death, you can add this provision to your living trust agreement. Revocable living trusts can be changed to redistribute your assets, as you like, at any point during your lifetime – as long as you’re mentally competent. Please consult with an attorney for the most up-to-date advice. Attorneys at Thomas-McDonald Law Firm are licensed in the state of Florida and available to help with your estate planning or probate needs. The information contained in this blog is not legal advice, and it is not a substitute for legal advice.
By Aislynn Thomas-McDonald, Esq.