A pour-over will is a last will and testament that is used in conjunction to a living trust. The pour-over will functions by taking all aspect listed in the will and transferring them into the trust which can then be distributed as outlined within the document. Like many other legal options the pour over will has many advantages and disadvantages and may not be right for every situation.
Advantages of a Pour-Over Will:
A pour-over will offer a simple solution to ensure that all of the estate arrangements are coupled with a trust in a single document. The fact that eventually all assets will be covered in a single document leave less room for error generated by multiple documents and can therefore make it easier for a trustee and executor to work together to close the estate following your death. Secondly, since a vast majority of your monetary assets will be covered already in your living trust a pour-over will can simply transfer the smaller assets following your death which can ensure that all items are accounted for and your arrangements are complete. Lastly, a pour- over will is not like a typical will in that it primarily functions as a trust document. Unlike a last will a pour-over will remains private and will not become a part of the probate court’s records. Pour-over wills are largely used by celebrities to prevent unwanted individuals from determining the specific language of the will or determining who specifically is to inherit the portions of the estate.
Disadvantages of a Pour-Over Will:
For the most part the disadvantages to a pour-over will are that the property still must pass through the probate / probate process—just as is necessary with all other wills. Before the property can be obtained by the trust it must go through the probate process which can take some time. The process can take anywhere from a few weeks to a few months for the entirety of the living trust to be distributed. The speed at which the process takes is varied, but items already existing in a living trust can be typically distributed to the beneficiaries within a relatively short amount of time. In thorough estate planning only a small portion of insignificant property will be passed through the pour- over will into the trust as the majority of the valuable assets will already be incorporated into the trust while the creator is still living. If the small portion of the property, also known as the probate estate, is small enough to qualify as a “small estate” then the probate procedures may be faster, simpler, and less costly than the regular probate process. Generally speaking the small estate process can be used to transfer any type of property so long as it is not real estate. So in general the disadvantages are rather small and are similar to those of other last will processes.
Duties of a Pour-Over Will:
Similar to other wills, the Pour- over will allows for the creator to nominate an individual or multiple individuals to serve as the executor of the estate. During the process the responsibilities of the executor will be to gather remaining assets, pay off debts/ taxes, and transfer all the remaining assets into the living trust as designated in the will. Following the transfer of assets into the trust the items then become the responsibility of the “successor trustee”- which must be specifically named in your will to take over on your behalf following your death or incapacitation. The Successor Trustee only has control over trust assets and will not preside over any properties left in the estate. Once trust assets are collected then they may be distributed to the beneficiaries as outlined.
A trustee, unlike an executor, doesn’t need a probate court’s approval to act. A trustee will also be listed in a pour over will to following the instructions left in the pour-over will / trust document. The trustee can then preside over the trust in accordance to the pour-over and determine who gets what and when the get it. You may outline that the beneficiaries may receive the money / assets immediately or that the beneficiaries may only receive money/assets as soon as they reach the age of maturity. In fact a creator of a pour-over will may even dictate how money or assets are accessible to a beneficiary in terms of purpose—for example a creator may only limit access to the trust for education, for living support, or may distribute the funds over a long period of time. In more complicated circumstances the trustee may have the long term responsibilities of management and re-investment.
If you believe that a pour-over will may be right for you and wish to consult an estate planning attorney for your needs the Coleman Legal Group has attorneys that have experience in estate planning. Coleman Legal Group, LLC, Phone: 770-609-1247
