What Is a Pour-Over Will?

Your assets vs. trust assets

Creating a living trust therefore creates two types of assets, the trust’s assets and your assets. This is a very important distinction for purposes of the pour-over will and probate avoidance. If you still have personal assets, they are subject to the pour-over will. There are three general ways that assets don’t end up in the trust:

(1) the assets are acquired personally after the trust is executed

(2) assets are excluded from the trust intentionally or by mistake; and/or

(3) assets are not retitled due to delay or timing of acquisition. For instance, if you do not retitle your car into the trust, it could be seen as part of your personal assets rather than a trust asset.

Do I need a pour-over will?

Short answer is “probably” as assets not transferred to the trust at the time of your passing become part of the your “estate.” Regardless of the trust’s existence, these assets still belong to the estate if not transferred to the trust. So, if you don’t create a pour-over will, those assets will be treated as if the person had died “intestate,” that is, without a will, so assets will pass to certain heirs by law. These heirs may differ from the trust beneficiaries, meaning that your assets could go to someone that you never intended.

Like mentioned above, the pour-over will is a safety device to ensure your assets flow to your intended beneficiaries.

Does the pour-over will need to go through probate?

The short answer is “maybe.” The pour-over will deals with personal, not trust assets. Depending on your state’s probate laws, your estate—meaning the assets not transferred to the trust—maybe subject to probate. For instance, many states require probate for estates that have over a certain dollar amount in assets or any real estate. Many states also have small estate carve outs so estates under a certain value do not need to go through probate.