What is a Pour-Over Will?
Pour-over wills are a type of testamentary legal instrument that “pours-over” property from a will into an already existing trust. Basically, the writer of the will creates a trust, and declares in their will that the property in their estate will be distributed to the trustee(s) who are named in the trust.
Thus, pour-over wills are essentially safety measures that will protect assets which were not originally included in the trust. Upon the testator’s death, their property will be included in the trust, thereby avoiding the probate process. The transfers to the trust are generally accomplished through the intervention of an executor, who is named in the will/trust documents. .
What are Pour-Over Wills For?
Pour over wills may offer several distinct advantages to the testator (creator of the will) and their family. Some advantages of pour-over wills may include:
- May be suitable for transfers made to young adults or children. Rather than transferring the property and assets directly to the youth, the assets are transferred to the trust, where they are managed by a trustee. This can help prevent issues such as overspending
- Helps protect property that may have been overlooked or not included in the trust; this is accomplished by pouring the will contents over into the named trust
- Helps to spread the testator’s assets so that they aren’t distributed solely to one single beneficiary
What Types of Assets are usually subject to Pour Over Will provisions?
Generally speaking, most of the testator’s property and assets may be subject to a pour over will provision. The property transferred through a pour-over will may also include specifically named assets. In particular, tangible assets like jewelry, furniture, heirlooms, and clothing may be transferred. Many people like to keep such objects (in the family), but at the same time may want to hold them in trust.
However, certain items generally can’t be included under pour-over mechanisms, such as:
- Assets that are held in joint tenancy
- Assets that are to be inherited by a surviving spouse
- Assets that are part of an IRA or 401k plan
- Any assets specifically prohibited for transfer by state laws
What if there is a Dispute over the Will or Trust?
Disputes can often arise over will distributions and trust management. This is compounded in a pour-over will, since both aspects of estate management are involved. For example, the named executor may fail to ensure that the will property is actually transferred to the trust. This can occur due to error, oversight, or simply poor management.
Another scenario is where there is a dispute over the release of the assets being held in the trust. For instance, the beneficiary named in the trust may desire to obtain the trust contents sooner than what is stated in the trust provisions. This underscores the importance of having clearly written instructions for both the will and the trust.
Will disputes can be complicated because the person is may already be deceased. If that’s the case, a representative of the deceased may have to represent them during legal proceedings. This person should be chosen carefully and named specifically in the trust and will documents as the person who would oversee any legal disputes. The representative should have good knowledge of the testator’s backgrounds and desires regarding their property.
Do I need a Lawyer for assistance with a Pour-Over Will?
Pour over wills require much planning and the ability to foresee various events in the future. You should contact an experienced attorney if you need help with a pour-over will. Your lawyer can help explain how pour-over wills work, and can interpret the various laws in your area. Also, in the event of any will disputes or legal contests, your lawyer can represent you and your interests in a court of law.
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Last Modified: 09-29-2012 10:52 AM PDT
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