A type of will that transfers your property and assets into a trust if you forgot to do so
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When you create your estate plan, you might decide that a trust is the best way to pass some or all of your assets to your heirs. But a trust can only help if you actually transfer your property and personal assets into the trust, which is where a pour-over will can help.
A pour-over will allows the testator (will creator) to transfer assets into a trust if they forgot or weren’t able to move those assets into the trust before they died. For example, what would happen if you purchased a new car and died before you could move it into the trust? Pour-over wills can direct any assets that you missed to be moved into the trust. You can still use the pour-over will to give away less valuable belongings directly to a beneficiary, like if you want to leave your book collection to your cousin.
A pour-over will is a will that includes language to transfer your property and valuables into a trust
If you have a living trust, a pour-over will can ensure your assets are directed into it and received by the proper trust beneficiaries
You may especially want to pour over valuable assets or anything intended for a beneficiary who isn’t your immediate family
Pour-over wills do go through probate
Trusts often work in conjunction with wills, and pour-over wills are no exception. We’ll discuss how pour-over wills work as a safety measure to transfer assets into a trust and why it’s an important estate planning document for someone with a trust.
A pour-over will is a type of will that is primarily created to direct your property into a trust upon your death. You can use a pour-over will to transfer assets into a trust you’ve already created — called a living trust or inter vivos trust — or a trust that is created upon your death — a testamentary trust. Regardless which type of trust you have, the pour-over document must state which assets you want to move into the trust.
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The benefit of having your assets pour over (transfer) into a trust is that they will be managed by a trustee and who distributes the trust assets to beneficiaries based on the terms set for the trust. For example, perhaps you want to leave a rental property as a gift for your son, but have specific instructions as to how much of the income from the property he receives and when. You can create and enforce these terms with a trust instead of giving him the property through a will.
Learn more about how to set up a trust.
Wills and trusts are not mutually exclusive and it’s probably best to create a will even if you already have a revocable living trust. While a trust only deals with the distribution of assets, a will offers a few additional features.
A pour-over will is a good safety net to ensure anything left out of your trust, whether intentionally or accidentally, gets to your intended heir. It can be helpful, for example, if you frequently buy and sell real estate property and don’t always have the time to remove or replace them in the trust.
Your will can designate a guardian for your minor children, which is especially useful if they are very young.
A pour-over will lets you give away your lesser valuables that you don’t necessarily need to give away through a trust. For example, you can use the will to give your record collection specifically to your niece, or you can use the will to give away the entire “residue” of your estate all at once with a residuary clause.
It’s especially useful to have a pour-over will if your intended beneficiary is an institution, charity, or anyone other than your immediate family. These beneficiaries may have a harder time receiving assets if someone contests your will, so a strong will can prevent any estranged relatives from receiving the inheritance you set aside for someone else.
You can create a revocable trust and pour-over will with Policygenius.
Without a valid will, any assets without a beneficiary designation are distributed based on intestacy law. Each state has its own rules dictating who has a claim to your assets. In most common circumstances, assets will be distributed to your next of kin, but it’s certainly possible your money and belongings won’t go to your intended recipients.
More generally, this is why it’s important to have a proper estate plan to begin with. If you have questions about your estate plan or need legal advice, contact a local estate planning attorney.
See: What happens when you die without a will.
Avoiding probate is one of the significant benefits of passing along an inheritance through a trust instead of a will. Probate is the legal process of proving your will’s authenticity. All assets distributed by a will — whether they are directed to a beneficiary or into a trust — are subject to probate. A trust has its own rules that govern where the assets go, so there’s not usually a need for a probate court to determine who gets what.
It's likely that pour-over wills need to be probated since the assets have not yet been transferred into the trust. Some states also require your assets to go through the probate process any time your assets or property are over a certain value. You can talk to an estate planning lawyer about the specific laws in your state.
Even though pour-over wills don’t avoid probate, there is still a measure of privacy. The will becomes part of the public record but public knowledge ends with what assets the deceased person bequeathed into the trust; most of the time, how the trust distributes assets remains confidential, if the trust has already been established. The terms of a testamentary trust however tend to be less private, since they are laid out directly in the will.
Which assets you should transfer into your trust depend on your specific estate plan, but generally, it might only be necessary to direct high-value property into the trust. Valuable assets can cause problems for your estate during probate if someone chooses to contest your will. (That’s why you may want to put your house in a trust.)
You should also consider pouring over assets intended for a beneficiary who cannot manage their finances, like a spendthrift son (see a spendthrift trust) or a child with special needs (see a special needs trust). The assets will be handled and distributed according to the terms of the trust.
If you want to bequeath lesser valuables directly to someone — like if you want to leave a photo album to your brother — a pour-over will can leave assets to a beneficiary through a residuary clause, which you can also include right in the pour-over will.
There are also certain things you shouldn’t put in your will. As an example, a payable-on-death account or transferable-on-death deed have their own beneficiaries. The beneficiary receives the asset if you die, without the need for probate, so there’s no need to list the asset in your will.
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