How a "Pour-Over" Will Works

If your estate plan includes a living trust, you might want to make a "pour-over" will to account for everything.

Updated by Betsy Simmons Hannibal, Attorney

If you created a revocable living trust to avoid probate, you might also want to make what's called a "pour-over will." This type of will is designed to handle any property that you don't add to the trust before your death. Any property that passes through the pour-over will upon your death should be transferred to (or poured into) your trust and then distributed to the trust beneficiaries (your heirs).

Why Use a Pour-Over Will?

The goal of a pour-over will is to have all your assets distributed under the terms of the trust document. Using a pour-over will to support a trust has several benefits:

  • The estate plan is simpler because it's governed by just one document, the trust.
  • It keeps the details of who gets what private because a trust document—unlike your will—doesn't become a matter of public record after your death.
  • It takes care of "leftovers"—that is, items that you didn't get around to transferring to the living trust before your death.

The Executor's Job When There's a Pour-Over Will

As with all wills, the person you name as executor of a pour-over will has the responsibility of handling any assets that pass under the terms of your will—that is, anything you owned that you hadn't already transferred to the trust. But instead of distributing assets directly to beneficiaries, with a pour-over will, your executor must transfer everything to the living trust. Then the successor trustee takes over. (Though, in practice, your executor and your successor trustee may be the same person.)

Pour-Over Wills and Probate

If you set up a revocable living trust to spare your family the expense and delay of probate, it would be a shame if your estate ended up needing a full-blown probate proceeding. But when it comes to probate, a pour-over will is just like any other will. So, unless there's a probate shortcut authorized by state law, the assets that pass through your pour-over will must go through probate.

Fortunately, in most cases, not very much property passes through a pour-over will. If you did a good job of estate planning, you'd have transferred all your valuable assets to the trust before your death.

Only things of minor value should pass under the terms of your pour-over will. That might allow your estate to qualify for special "small estate" probate procedures. These processes, usually called "summary probate," are quicker, easier, and less expensive than the regular probate process. In most states, you can use them for any kind of property except real estate.

The Role of the Successor Trustee

After your death, your executor transfers assets through your pour-over will to your living trust. Then they become the successor trustee's responsibility. The successor trustee's job is similar to that of the executor, with a crucial difference: The trustee controls only trust assets. So, the trustee will distribute the trust assets following the terms of the trust document.

If your goal for creating a living trust is simply to avoid probate, your trust document might just instruct the trustee to distribute everything to the beneficiaries as soon as possible. (No probate is necessary for trust assets.) However, if you plan to leave trust assets to children, young adults, or someone with special needs, your trust document might include more complicated instructions.

For example, the trustee might be directed to leave a young beneficiary's money in trust until the beneficiary is a certain age and then dole it out in three chunks over 10 years. It's entirely up to you. This flexibility means that a successor trustee may have money management responsibilities long after the executor's job is finished.

Planning Your Estate

Regardless of the size of your estate, getting your affairs in order before you die will make things easier for your family once you're gone. Creating a pour-over will to go with your living trust will ensure every asset in your estate is protected after your death.

(Learn more about how to get started planning your estate. Or try Nolo's WillMaker, which you can use to make a variety of estate planning documents, including living trusts, wills, healthcare directives, and more.)

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