Pour Over Will

A pour-over will is created to “catch” any assets or property that had been left out of a living trust, either intentionally or inadvertently. A living (or inter vivos) trust is a legal instrument in which the grantor—the one who owns the property—transfers control of property to a trustee to manage for one or more beneficiaries during the grantor’s lifetime. Sometimes, for convenience, people intentionally omit putting certain assets, such as a car or real estate, into a trust. Upon the testator’s (grantor’s) death, the pour-over will must go through probate, and any property not left to specific beneficiaries will spill over into the trust for the benefit of the trust’s named beneficiaries.

Unlike a testamentary trust will, which creates a trust upon the death of the testator subsequent to probate, a pour-over will does not create a trust. The trust associated with it is a living trust, which the testator created either at the same time he wrote his will, or at some time prior to writing the will. The pour-over will and the living trust are connected. However, the living trust itself is a valid document and can exist without the pour-over will while the pour-over will must be linked to a trust in order to have a destination for the left-over assets and property.

This example illustrates the difference. Suppose you own a house, two cars, some jewelry, and $250,000 cash in bank accounts. You set up a living trust (set up during your lifetime) for the benefit of your children, and you transfer your bank accounts into the trust to be managed by your appointed trustee, possibly yourself. Your estate attorney helps you write a pour-over will, and in your will, you leave your house and cars to your children, but forget to mention the jewelry. After you die and your will goes through probate, because of the pour-over provision in your will, your jewelry will go into the living trust, one of the beneficiaries of the will, which, in turn, benefits your children.

If, instead of setting up a trust during your lifetime, you make a testamentary trust will, after your death and after probate, a trust will be set up and the specific assets you indicated in your will shall go into the trust for the benefit of your trust beneficiaries. This trust does not exist until you die.

Case Studies: Pour-Over Wills and Living Trusts

Case Study 1: John’s Overlooked Jewelry

John devised a pour-over will and a living trust to effectively manage his possessions. Regrettably, he unintentionally omitted his valuable jewelry from the will. Nevertheless, following his demise and the subsequent probate process, the pour-over provision facilitated the transfer of the jewelry into the living trust. As a result, Sarah and Mark, the designated beneficiaries, were able to benefit from this inclusion.

Case Study 2: Sarah’s Testamentary Trust Will

Sarah made the decision to create a testamentary trust will in place of a living trust. After her passing and the conclusion of the probate process, her will formed a trust that designated certain assets to it. This arrangement provided Mark, the recipient of the trust, with various benefits derived from Sarah’s estate.

Case Study 3: Mark’s Comprehensive Living Trust

Mark demonstrated meticulousness in creating a comprehensive living trust during his lifetime, encompassing all of his assets. By doing so, he ensured a seamless transfer of his estate to his chosen beneficiaries, Sarah and John, bypassing the need for probate. This thoughtful planning allowed for efficient and secure distribution of Mark’s assets.