A pour over will is a critical component of any estate plan that utilizes a revocable living trust. In this article, we will explore what exactly a pour over will is, its relationship with an estate plan, and its relationship with a revocable living trust. We also will describe how a pour over will relates to probate.
Pour Over Will Definition
A pour over will is a last will and testament which transfers all of a deceased individual’s property at his or her death to a revocable living trust. In effect, the pour over will is directing that any property that passes through the will be transferred, poured over, into the trust. In this way, the pour over will is acting as a safety net for the trust. Although the property that passes through the pour over will must be probated, the probate process should be abbreviated and much less taxing than a full probate.
How A Pour Over Will Works In Estate Planning
The pour over will acts as the safety net for the trust. A good way to think of a trust is that it is a bucket and the grantor’s – the person creating the trust – assets are held in the trust bucket. Any asset that was not placed into the trust bucket at the time of the grantor’s death would be subject to probate. A good way to visualize the pour over will is as if it were a pitcher. The pour over scoops up any assets not placed in the trust bucket at the time of the grantor’s death then pours them into the trust bucket.
Pour Over Wills and Trusts
This is of importance because if an individual values their privacy, nothing will be leaked during the probate process. All that will happen is that the probate will show the assets were transferred to a trust and the terms of the trust are still private. It also keeps the estate plan simple. This is because once the assets are poured over into the trust they will be governed by the trust document along with all the assets already held in the trust bucket at the time of the grantor’s death. One document will govern all the grantor’s assets. Because of this, the pour over will is an essential part of any estate plan utilizing a revocable living trust.
Further, a pour over will is where parents can name guardians for their minor children when utilizing a trust-based estate plan. This is of the utmost importance. If the parents do not name guardians for their minor children in the pour over will then it will be left up to the court who should be caring for the children in the event of the parents’ death. Obviously, parents would rather choose the guardians for their minor children than leave it in the hands of the court and risk their children being raised by someone who they would not want them raised by.
Pour Over Wills and Probate
Although a pour over will does not avoid probate, it still has advantages over a normal probate process. The first advantage is that it keeps the grantor’s distributions private. All that will come out during the probate process is that the assets should be poured over into the trust. None of the trust terms will be made public because the trust is not a matter of public record.
Another advantage of the pour over will as it goes through probate is that the probate process should be much abbreviated. Without the court having to ensure all the beneficiaries have received notice and distributions the court only must ensure that the assets have be poured over into the trust. This keeps the probate shorter and less taxing on the personal representative.
Pour Over Will Sample
Imagine creating an estate plan utilizing a trust but the grantor forgets to place an investment account into the trust bucket before they pass away. Now there is a sizeable asset that is not being governed by the trust document and without a pour over will would be distributed by the court as if the person had died intestate, meaning died without any estate plan in place.
In this case, the money from the investment account could wind up going to people they never intended to benefit from their passing. A pour over will instruct the probate judge to pour the asset over into the trust where it will be governed by the trust document and distributed according to the trust document. In this way it will keep the grantor’s wishes intact.
How Can TuckerAllen Help You With Your Pour Over Will?
At TuckerAllen, we can help create a pour over will for clients to use in their trust-based estate plan. Our experience allows us to explain how a pour over will functions along with advising clients about how to choose a personal representative for their pour over will. Further, we can explain the roles of personal representatives, and trustees, as we walk our clients through the estate planning process.
Get in touch with us if you have any more questions about a pour over will.