you’ve looked into creating a revocable living trust to avoid probate,
you may have heard of a “pour-over will.” This kind of will
is often used with a living trust. Under the terms of a pour-over will,
all property that passes through the will at your death is transferred to
(poured into) your trust. Then it’s distributed to the trust beneficiaries
you named while you were alive.
of Pour-Over Wills
Why have a will that does nothing but transfer property to your trust?
(For that matter, why do you need a will at all if you’re using
a living trust to leave your property?) The answer is that many estate
planners think it’s a good idea to have all your assets covered
by the terms of just one document, the trust document. This arrangement
offers several advantages.
When everything is controlled by just one document, the trust, it makes
it clear who gets what. It’s also easier for the executor and
trustee who are in charge of wrapping up your estate after your death.
You’re not going to transfer everything you own into your living
trust. (No one does.) A pour-over will takes care of assets that you
don’t get around to transferring to the trust before your death.
Trusts, unlike wills, are private; they don’t become public records
after your death, available to anyone who wants to look at them. This
keeps the details of who inherits your property more private.
Disadvantages of Pour-Over Wills
The main downside to pour-over wills is that (like all wills), the property
that passes through them must go through probate. That means that any
property headed toward a living trust may get hung up in probate before
it can be distributed by the trust. This may force the living trust to
go on for months after the death of the will and trust maker. In contrast,
property left directly through a living trust can usually be distributed
to the beneficiaries within a few weeks after the trust maker’s
in most cases, not too much property passes through a pour-over will.
If you do good job of estate planning, you’ll transfer all of your
valuable assets to the trust while you’re alive. Only the leftovers—things
of minor value—should pass under the terms of the will. And if the
value of the property that passes under the will (often called the “probate
estate”) is small enough, your estate may qualify for special small
estate probate procedures. These procedures are quicker, simpler, and
less expensive than regular probate. In most states, they can be used
for any kind of property except real estate.
In the case of a pour-over will, the executor has just one job: to take
all assets that passes under the will and put them into the living trust.
going to all the trouble of setting a revocable living trust to spare
your family the expense and delay of probate. So it would defeat the purpose
if a formal probate proceeding were necessary just to get assets into
your living trust. But it’s a possibility. Unless your estate qualifies
for probate shortcut, assets that pass through the pour-over will need
to go through probate.
Once the assets are held in the name of the trust, they become the responsibility
of the successor trustee—the person you named in your living trust
to take over at your death or incapacity.