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A pour-over will is the same as any other last will and testament. But there is one major difference — this type of will “pours” your property into a trust that you’ve set up in advance. Upon your death, the assets are distributed to your intended beneficiaries through the trust, not through probate.
The usual reason for a living trust is to avoid the probate process, which can be lengthy, complex and expensive. But the trust only covers property that you have transferred to it during your lifetime. Any other property must go through probate unless you’ve taken steps to distribute it otherwise. A pour-over will, takes care of that problem by capturing all remaining assets and making them part of the trust.
Once assets go into the trust, the successor trustee must manage and distribute them in accordance with your instructions. The trust designates which beneficiaries get which assets and tells the trustee what to do if a transfer cannot be made as directed. This prevents any of your legacies from lapsing.
A pour-over will offers a number of advantages, including the following:
- It can ensure that all of your property will be accounted for as you would have wished.
- It avoids assets passing to heirs who may not be your desired beneficiaries.
- It allows one document to control how the assets in your estate are distributed, making the process easier for the personal representative.
- It allows assets to be distributed privately to the trust beneficiaries and not as part of the public probate proceeding.
In many cases, not much property will pass through a pour-over will, since most of your assets should be transferred to the living trust during your lifetime. But a pour-over will can serve as a safety net and ensure that anything left over or overlooked will pass to the trust and to its named beneficiaries.
The pour-over will must still go through probate, but most times the probate process is easier since the only property transfer is to the living trust. However, the will can be subject to contests by your heirs or creditors based on various grounds, such as duress, fraud or lack of testamentary capacity.
If you use a pour-over will, it’s still important to have a thorough estate plan in place to make sure your wishes are carried out after your passing. Pennington Law, PLLC works with individuals and their families regarding a wide variety of estate planning matters. With offices located in Surprise and Sun City West, we represent clients throughout the Phoenix metro area. Call 623-208-7867 or contact us online to schedule a consultation.
