A pour-over will is a type of will with a provision to “pour” any leftover or unallocated assets in a person’s estate into a living trust when the person dies. The idea is to minimize the probate process and ensure that assets are distributed as the deceased wishes.
If your estate plan includes a living trust, you may want to consider pairing that trust with a pour-over will. A pour-over will helps ensure that your residuary estate and any assets you neglected to include in your living trust will be transferred to that trust automatically after your passing (literally poured over into the trust), so your estate can be distributed the way you want.
Here’s everything you need to know about pour-over wills so you can decide if this option is right for you.
How pour-over wills work with living trusts
Unlike a traditional last will and testament, a pour-over will is not a stand-alone document, and that’s because it needs something to pour into. Pour-over wills are designed to work in conjunction with living trusts, also known as inter vivos trusts, as an added safety measure.
A living trust allows you to retain complete ownership of the assets contained in it for as long as you’re alive. Then, when you pass, any assets that you’ve transferred into your trust are distributed according to your wishes — without having to go through probate.
A pour-over will brings important added protection to your existing living trust by letting the court know that any assets you forgot to (or were unable to) include in your trust should be immediately transferred to that trust upon your death so that they can be distributed to your chosen heirs. Without a pour-over will (unless you also have a traditional will and testament detailing assets not included in your trust), any assets you neglected to include in your trust would be treated as if you died without a will, also known as dying intestate. The court may distribute the assets according to state law, which could yield very different results from what you intended.
Betty establishes a living trust and takes a careful inventory of her financial assets. She conscientiously transfers all her investments and bank accounts that she can think of into her living trust. Betty names her husband, Joe, and her younger sister, Lisa, as the sole beneficiaries, with Joe as trustee/executor. She feels comfortable knowing that her assets will go only to the people she loves the most.
Betty was careful but forgot to include an old pension plan account from a job she held briefly in her 20s, which has been quietly growing over many decades and has become a sizable asset. Because she only receives quarterly statements from that account and isn’t actively working with it, the pension completely slipped her mind when setting up her living trust.
Thankfully, Betty covered her bases by also creating a pour-over will that states that the remainder of her estate should transfer to her living trust upon her passing. When Betty dies, the pension account transfers to the trust so that Joe and Lisa can inherit Betty’s entire estate smoothly and in accordance with her wishes.
Advantages of pour-over wills
Using a pour-over will with a living trust brings some distinct advantages:
Privacy. Unlike wills, trusts are private and do not become a matter of public record. When your pour-over will (which only states that the remainder of your estate should go to the trust) transfers your assets into your trust upon your death, the distribution of your estate remains private, and no one can just look up who inherited what.
Comprehensiveness. Almost no one is so on top of things that they can transfer every single one of their assets into their living trust before they pass. There’s virtually always some forgotten account or valuable personal property that gets missed. A pour-over will has you covered so nothing gets left out.
Simplicity. Once the remainder of your assets transfers into your living trust, your entire estate is controlled by a single document, which makes the distribution of your assets clear and easy for your executor.
Ability to name a guardian. A pour-over will allows you to appoint a guardian for your minor children, which isn’t usually something you can accomplish with a living trust alone.
Disadvantages of pour-over wills
However, a pour-over will has some downsides:
It doesn’t completely avoid probate. The major disadvantage of pour-over wills is that unlike living trusts, all assets that go through wills of any kind may be subject to probate. This means that using a pour-over will make at least some of your estate likely to require the very probate you’ve attempted to avoid when you created a living trust. (Any assets already in your living trust at the time of your passing won’t have to go through probate and can be distributed right away.)
It has potential delays. When the assets slated to transfer to your living trust get delayed in probate, the living trust itself may be forced to remain active until probate is complete and the property covered by the pour-over will can be distributed.
Are pour-over wills legal in all states?
What do you put in a pour-over will?
Do pour-over wills always have to go through probate?
If my pour-over will still requires probate, where’s the advantage?
How long does it take to probate a pour-over will?
Are there any tax implications to be aware of?