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What Is a Pour-Over Will?
Pour-over wills are a particular type of will used in conjunction with a trust. This kind of will “pours” over any property that the descendant’s will did not give away through the will into an 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. The rule is that the trust must exist at the time the will is created.
Thus, pour-over wills are essentially safety measures that will protect assets that were not originally included in the trust. The transfers to the trust are generally accomplished through the intervention of an executor, who is named in the will/trust documents.
What Are the Advantages of a Pour-Over Will?
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 a trustee manages them. 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.
- When the descendant’s property is managed by one single document, it makes it easier for the executor and the trustee to have a better understanding who gets what property and management and control will be much easier.
- Trusts are private and they do not become public records like Wills do after your death. The property inherited would be kept private.
What Are the Disadvantages of Pour-Over Will?
The main disadvantage of a pour over will is that any property that will be headed to the trust must go through probate. This creates a delay in the process for the property that is being transferred to the living trust and the beneficiaries are not entitled to the property at the time of death.
Many try to transfer their assets before their death to the beneficiaries so there would be not much property left to be passed through a pour-over will and the probate process.
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
Who Manages the Pour Over Will?
Just like any other wills, an executor is usually named in the will to manage and control the distribution of the assets of the descendant’s estate. The executor’s main duties will be to gather all the assets, pay all the taxes, pay all the debt owed by the creditor, and distribute all the assets to the beneficiaries according to the will. In a pour over will, the executors duties will be to take all the property that did not pass in the will and pour them over to the living trust that was named in the will. Usually the will would include what trust the property should be transferred to. The assets that are included in the pour over will would still be required to go through probate.
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.
Should I Contact an Estate Planning Lawyer?
Pour over wills require much planning and the ability to foresee various events in the future. You should contact an experienced estate planning attorney if you need help with a pour-over will. 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: 07-22-2014 04:43 PM PDT
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