Guidelines for Using a Pour-Over Will in a Living Trust

By Beverly Bird

Few things in law are exactly what they sound like, but a pour-over will is one. When you die, it essentially "pours" some of your assets into another estate-planning mechanism for distribution to your beneficiaries. Pour-over wills generally work in tandem with trusts. They address assets that -- for one reason or another -- you did not transfer to your trust.

Purpose

When you create a trust, you transfer ownership of your assets into it. Then, when you die, your trust transfers them to your beneficiaries according to your directions. Some assets might escape the process. You might acquire a new piece of property, then neglect to transfer the deed into the name of the trust before you die. Some assets are not suited to trust ownership. Others don’t involve a title or deed, such as your grandmother’s antique wedding ring, so officially transferring ownership may seem unnecessary. A pour-over will automatically transfers these remaining assets into your trust when you die. You don't have to itemize each asset. That would defeat the purpose. You simply state that anything you own not included in your trust should transfer to your trust when you die. Without such a will, the probate court distributes them according to your state’s laws of intestate succession, as though you had died without a will or any estate planning at all. Your non-trust assets would go to your closest living relatives, even if you didn't want those relatives to receive them.

Probate

Your trust is usually the sole beneficiary of your pour-over will. Therefore, the assets caught by your pour-over will and transferred to your trust must usually pass through probate. Probate is the legal process that changes ownership from you to your trust. However, some exceptions exist. Some states do not require probate of small estates with values under a certain limit. For example, in California, the limit is $100,000. Because you’re not transferring all the assets in your pour-over will, but only the portion you did not place in your trust, their value might easily fall below the $100,000 threshold. Other states offer simplified probate procedures for small estates. Depending on the type of assets your pour-over will must move from your name into your trust’s name, if their value is not significant, the probate process might simply be a brief legal formality.

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Variations

Your pour-over will is a document of your own creation so you can tailor it to fit your own estate needs. You’re not legally required to transfer ownership of your other assets to your trust. A pour-over will's primary purpose is to catch assets you didn’t place in your trust so you can avoid your state's laws of intestate succession. Instead, where they go is up to you. You can bypass your trust entirely and leave the assets caught in your pour-over will to named beneficiaries. You can also use a pour-over will to name guardians for your children. This issue is not normally something your trust documents would address.

Creating a Pour-Over Will

Typically, if an attorney prepares your living trust, he will create a pour-over will at the same time as part of your trust documents. However, if you don’t want to use an attorney, you have other options. You can use an online legal document provider such as LegalZoom. When you purchase a trust package from LegalZoom, it includes a pour-over will.

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References

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