What is a pour-over will? Essentially it is a contingency that allows those who use trust-based estate planning to transfer assets that are not held in trusts into a trust at the moment of their passing.
Trusts are a powerful estate planning tool. They allow you to transfer assets that are meant to be disbursed to your loved ones into self-contained legal entities that act as containers for these assets. But what happens if you purchase a new item and you never got a chance to allocate the item to the trust? With a pour-over will, you can create a contingency that allows assets not held in trusts to be transferred into trusts at the moment of your passing. Below, we’ll discuss how this works.
How Does a Pour-Over Will Work?
The concept is fairly basic. A pour-over will states that any assets that are not currently funding a trust should be placed in a revocable living trust when you pass. In essence, it names the trust as a primary beneficiary of assets that are not held in a trust.
Will Pour-Over Wills Pass Through Probate?
Yes. They will pass through probate before they are allocated to the will, since they are not considered part of the trust and the trust is named as a beneficiary. However, assets not already contained in a trust will pass through probate anyway. For items that you want to keep off the public record or prevent from passing through probate, placing the assets into a living trust prior to your death is essential. However, since the trust contains language that designates your wishes, the items will be disbursed according to your wishes once they pass into the trust.
What Happens if I Don’t Have a Pour-Over Will?
If you don’t have a pour-over will or otherwise direct to whom or what those assets should be transferred, the property will be distributed according to the directives of your will or, if not otherwise specified, will be disbursed according to intestate succession. Intestate succession is what happens to assets and property that are bequeathed without a will. The law provides for a hierarchy of beneficiaries with your spouse being the highest on the list and your children next in line.
Advantages of Pour-Over Wills
Pour-over wills act as a failsafe to prevent your assets from being distributed according to intestate succession. Many estate planners also recommend pour-over wills because it’s much simpler to have all assets covered by one trust document. This makes executing an estate plan much simpler. Pour-over wills provide a complete framework for making this possible. They also allow you the privacy of preventing others from knowing who gets what. In that regard, the trust acts as a shadow document that prevents heirs from bickering amongst each other.
Disadvantages of Pour-Over Wills
The main disadvantage of pour-over wills is that the assets will pass through probate prior to going into the trust. In some cases, this means that the property will be in limbo for some time while the courts deal with it and could be used to repay your creditors prior to being transferred into your trust. In fact, the whole trust will be kept alive until the probate matter is finished.
One mistake that some folks make is over-relying on their pour-over will to distribute unclaimed assets to the living trust. This can cause the entire process to bottleneck in the probate court. This can be avoided by diligently funding your trust as new assets become available.
What is a Pour-Over Will?
The bottom line is: A pour-over will provides a safety net to those with large-asset estates and allows them to move all assets not held in a trust into a trust at the time of their passing. It’s a remarkably useful estate planning tool.
If you have any more questions, The Herbert Law Office will go over your options with you and discuss whether a pour-over-will is appropriate for your circumstances. Call us today and we’ll be happy to address all of your estate planning needs.