Mary Carollo: Pour Over Will

This question comes up from time to time because I’m an estate planning lawyer. Let’s say that during your lifetime, you create a will and a living trust. How do they work together? Even if you create a living trust, any assets not included the trust can be fully controlled and distributed the way you want after your death. This is why people choose to create a pour-over will. Read on to learn about pour-over wills and their legal effects.

What Is a Pour-Over Will?

A pour-over will is a type of will used with a living trust that “pours” all of the assets belonging to the testator into a trust that he or she had set up before death. The terms in a pour-over will allows any assets that the testator failed to transfer into a trust during his or her life to be passed into the trust at the testator’s death. The purpose of pour-over wills is to guarantee the assets that weren’t included in the trust will be transferred. Those assets will then be distributed to the beneficiaries of the trust.

How Does a Pour-Over Will Work?

Having a valid pour-over will saves you time because you don’t have to constantly change your trust to add or replace trust assets. You only need to have some sort of valuable assets in the trust, and your pour-over will pick up any assets or property that are not included in your trust upon your death.

In order to validly execute a will, you must meet the following elements: (1) the testator’s testamentary capacity; (2) the will is in writing; (3) the testator’s signature on the will; and (4) two witnesses of will execution. For pour-over wills, the trusts to be “poured over” should mention the will and execute prior to or contemporaneously with the will. Make sure to check your state’s law because some states may have additional requirements to will formalities.

Upon your death, the executor of your estate will start working on your estate. Executors have to go through probate and get permission from the probate court before proceeding on with their duties. Generally, an executor’s main duties are gathering the assets and paying outstanding debts and loans. The truth is, a pour-over will is an essential part of estate planning.

For a pour-over will, the executor will need to take all of your assets that pass under the will and put them in the living trust you created. Once the assets are put in the trust, the trustee you named in your trust will collect the trust assets and distribute them to the named beneficiaries.

Advantages of a Pour-Over Will

So, why do people create a pour-over will instead of other types of wills? Here’s a list of some benefits of using a pour-over will:

Efficient management tool: A pour-over will controls the entire estate by a single document, which saves you time and makes it easier for all parties to manage the assets.
Completion of the assets: A pour-over will takes care of the assets or property that may have been forgotten or fail to be mentioned in the will before your death.
Security of private information: Information about your estate is kept private because trusts are not matters of public record.

Disadvantage of a Pour-Over Will

As with other types of wills, pour-over wills require probate. While the assets left in the trust may be distributed immediately, any assets or property going through the will to the trust must go through the probate process. Depending on the case, the probate process can take a long time before the assets can be distributed.

Free Consultation with a Utah Estate Planning Lawyer

If you are here, you probably have an estate matter you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.