Estate Planning

Pour-Over Will

A Pour-Over Will is a Will that is used only in conjunction with a Living Trust. Its terms simply provide that whatever was left out of the Living Trust shall go through probate to have title changed. The assets then are placed into the Trust and disbursed according to the terms of the Trust.

Another important element of the Pour-Over Will is that it authorizes the Trust to be created even though the Trust may be invalid for one reason or another. In the unlikely event that the original Trust document was declared legally invalid, the Pour-Over Will would force the proper disposition of the assets. It does this by empowering the Will to administer the estate according to the terms of the Trust document and incorporates the Trust document into the Pour-Over will by reference. This means that the estate would be disposed of according to the wishes of the Trustee even though the Trust was invalid.

If a Trust has been properly set up and properly funded, the Pour-Over Will should have no effect and should not be needed because all the assets pass through the Trust. The only time a Pour-Over Will should be used is when there are minor children and the Pour-Over Will appoints the guardians for the minor children. It is very important that the Pour-Over Will not contain any provisions that contradict the Trust document. It should simply state that any assets left out of the Trust should be placed directly into the Trust.

A minor deviation of this general principle occurs when the Pour-Over Will provides that any assets left out of the Trust estate first go to the surviving spouse. If there is no surviving spouse, then the assets go to the Trust estate. This provision is especially suited for the transfer of motor vehicles. Since most couples do not die simultaneously, there is usually one spouse alive after the first spouse passes away. A Pour-Over Will written in this manner allows the easy transfer of motor vehicle ownership to the survivor. The necessity of bringing the Trust document down to the Division of Motor Vehicles for their inspection is avoided.