Most people create a revocable living trust to avoid probate. A pour-over will is also executed to allow any unknown assets outside the trust to pass through the pour-over will into the trust upon the testator’s death. Trust property is then distributed to trust beneficiaries. Contact A People’s Choice for more information on how to prepare a pour-over will. Read on to learn more about California pour-over wills.
Pour-Over Will Overview
A pour-over will is a specific type of will. A will, sometimes called a last will and testament, is a legal instrument that states who will receive the testator’s property after death. A legal representative is appointed in the will to carry out the testator’s wishes. A pour-over will only requires the executor (appointed representative) to place all assets into the trust.
A revocable living trust is a legal document that allows a trustee to hold legal title to property for another person, the beneficiary. When an individual makes their estate plans using a living trust, they should not just prepare that one document. Typically, estate planning with a living trust includes several companion documents that offer additional estate planning benefits. Some of these include a Declaration of Trust, Financial Power of Attorney, Healthcare Directive and Will. These other documents, together with the living trust, provide a complete over-all estate plan that covers several contingency situations.
“Her living trust was set up to disinherit a particular family member. If she didn’t have a pour-over will, this property would have been distributed to someone my sister specifically wanted to disinherit. That would have been a travesty.” D. Williams
“As her executor, I was able to put property my sister inherited from her uncle into her living trust, even though she died beforehand. Her uncle’s probate was in the works but had not been distributed to his beneficiaries when she died. D. Williams
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If you are confused as to why you would need a will if you have a living trust, you are not alone. The will that is typically prepared with a living trust estate plan is not a typical will, but rather a special will called a “pour-over” will. This special type of will acts as an extra safety net, and is able to send forgotten assets back into the trust. The pour-over will typically provides for forgotten assets. For example, when an non-trust asset is discovered after a person dies, a pour-over will allows the asset to be transferred (poured over) into his/her trust to then be distributed. This also allows those assets to be distributed according to the terms of the trust, even though they were not in the trust when the person died. Simply put, rather than people being named beneficiaries in the pour-over will, the trust is the beneficiary.
It is important to keep in mind that assets not transferred into a trust during a person’s lifetime will become part of his or her “non-trust” estate. Depending on whether the person had a pour-over will, such assets could be treated as though a person died intestate. If there is no pour-over will, heirs receiving property through probate may differ than the trust beneficiaries. A pour-over will can make sure this does not occur and that all assets will be distributed according to the terms of the living trust. To sum it up, a pour-over will directs that some or all the non-trust property be transferred to the trust, so it can be distributed according to the terms of the trust.
Advantages of a Pour-Over Will
Together with a living trust, a pour-over will is a great legal tool to avoid probate. A pour-over will can help prevent the testator from dying intestate. The pour-over will can handle all the loose ends of an estate and make sure the testator’s property goes to his/her trust beneficiary as designed in their living trust. A pour-over will can provide for recently inherited property that has not yet been able to be transferred into a person’s trust. Contact A People’s Choice for more information about drafting a pour-over will and other estate planning documents.
Disadvantages of Pour-Over Wills
There really aren’t any disadvantages of having a pour-over will. Depending on the value of the assets not included in the trust, however, the assets controlled by the pour -over will may or may not have to go through the formal probate proceedings. Most people create a living trust to avoid the probate process. This is why it is important to make sure all of your assets are transferred into a living trust and the trust is properly funded.
Contact A People’s Choice for more information about pour-over wills. We can draft complete estate planning documents including a living trust and pour-over will to make sure your assets avoid the formal probate process in California.
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If there is a Trust…and a Pour Over Will too….and there are non-trust property that have a TOD or POD beneficiary, does the TOD/POD of non-trust property take first priority vs. the Pour Over Will?
Thank you so much
I would assume so but you may want to get legal
advice from an attorney.