One of the documents of our revocable living trust package is a document called a “pour over” will. Many clients ask why they need a will when they are doing a trust. Wasn’t one of the reasons to create a trust to avoid the probate process that is necessary with a will?
A “pour over” will is a specific type of will that accompanies a living trust. A “pour over” will is like a safety net. If you transfer all of your assets into your revocable living trust, then the pour over will not be necessary. But what if you accidentally or intentionally leave an asset out of your trust? In some situations a decedent may forget to title an asset in the name of his trust. A common example is when you refinance your home. Lenders ask you to take your property out of the name of the trust but don’t always put it back into the trust for you after the refinance. If you did not have a “pour over” will, the property would have to be distributed according to the laws of intestacy, which may not be the same as the beneficiaries of your trust.
With a “pour over” will, any assets owned at death and not otherwise titled will be “poured over” into your existing trust and be distributed according to the trust provisions after the asset is probated. Only the one asset not titled in the name of the trust, or otherwise transferred because of a beneficiary designation, will have to go through probate. In the example of a refinance, suppose you took your residence out of your trust to refinance and forgot to put it back in. Your trust provides that your residence is to go to a specific charity. With no “pour over” will, the residence will go through probate and be distributed to your intestate heirs, probably your children if you have no spouse. With a “pour over” will, the residence will still go through probate but will be “poured over” into your trust and be distributed to the charity you named.
If you have questions about a living trust, the probate process, or any other estate planning questions, call us or email the experienced estate planning attorneys at Scott C. Soady, A Professional Corporation.