In Estate Planning, a Pour-Over Will is a last will and testament that serves as a means of security to capture any assets that are not transferred to or included in a Living Trust, so that they are sure to go to your intended beneficiaries. It is important to note that Pour-Over Wills deal with personal, not trust assets.
A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is "revocable" which allows you to make changes and even to terminate it. One of the great benefits of a properly-funded Living Trust is the fact that it will avoid or minimize the expense, delays and publicity associated with probate.
If you have a Living Trust-based estate plan, you also need a Pour-Over Will. For those with minor children, the nomination of a guardian must also be set forth in a will! A major function of a Pour-Over will is that it allows the executor to transfer any assets owned by the decedent into the decedent's trust so that they are distributed according to its terms.
An important part of creating a Living Trust is that it needs to be “funded,” meaning that your personal assets must be transferred into the trust document via the trust document and/or retitling the assets in to the trust’s name. While “funding” a Living Trust can be an easy process, sometimes assets don’t always make it to the trust for a variety of reasons. An Elder Law Attorney should help you determine if a Pour-Over Will and Living Trust is right for you and your family's Estate Planning situation!
For more information, schedule a consult with one of our attorneys to see how we can help you and your family protect what is most important now and in the future!