What Is a Pour-Over Will?

What are the disadvantages of a pour-over will?

While a pour-over will provides valuable protection for your estate plan, it has limitations worth understanding before relying on it as your safety net.

The most significant drawback is that pour-over wills do not avoid probate. Unlike assets already in your trust, which transfer directly to beneficiaries without court involvement, assets captured by a pour-over will must go through probate, which typically costs 3% to 7% of an estate's value, before they can transfer to the trust. This means any assets the pour-over will catch are subject to probate court fees, attorney costs, and the associated delays that can take 6 to 12 months or longer to resolve.

Probate also eliminates the privacy benefit that trusts typically provide. Trust distributions remain private matters, but probate proceedings are public record. Any assets that pass through your pour-over will be included in that public documentation, allowing anyone to see which assets were involved and how they were ultimately distributed.

Finally, the timing delays can create hardship for beneficiaries who need access to those assets. While trust assets can often be distributed within weeks of the grantor's death, assets caught by the pour-over will remain frozen until probate concludes. This is why properly funding your trust during your lifetime remains essential—the pour-over will is a backup, not a substitute for thorough trust administration.

Pour-over will example

Consider Sarah, who creates a living trust and transfers her home, investment accounts, and savings into it. Her trust names her two children as equal beneficiaries.

A few years later, Sarah buys a new car and opens a small checking account at a different bank. She intends to transfer these to her trust but never gets around to it. When Sarah dies, her car and the checking account are still held in her personal name, not the trust's.

Without a pour-over will, these assets would pass according to state intestacy laws, potentially going to heirs Sarah didn't intend. But because Sarah has a pour-over will, the process unfolds differently:

• Sarah's executor identifies the car and the checking account as non-trust assets
• These assets go through probate (assuming they exceed her state's small estate threshold)
• After probate concludes, the car and checking account transfer into Sarah's trust
• The trust then distributes all assets, including the newly added ones, equally to her two children, exactly as Sarah intended

The pour-over will ensure Sarah's complete estate plan stays intact, even for assets she forgot to transfer during her lifetime.

FAQs about pour-over wills

If I have a revocable living trust, do I still need a pour-over will?

Yes, a pour-over will serves as a safety net for your living trust. While a living trust allows assets to be distributed outside the probate process, typically, not all assets are included in the trust. A pour-over will ensures that any personal assets not transferred to the trust are still directed to your intended beneficiaries according to your wishes.

Pour-over wills can also work with irrevocable trusts, though this combination is less common. Because irrevocable trusts cannot be easily modified after their creation, most estate planners emphasize properly funding them from the start rather than relying on a pour-over mechanism. There's also a potential tax consideration: with irrevocable trusts, the grantor has relinquished control of the assets, which may provide estate tax benefits. Assets that "pour over" into an irrevocable trust after death may be treated differently for tax purposes than assets originally placed in the trust. If your estate plan includes an irrevocable trust, consult with an estate planning attorney to understand whether a pour-over will is appropriate and what tax implications may apply.

Why might some assets not be included in my living trust?

Assets may remain outside your trust for several reasons: 

• You acquire assets after creating the trust and don't transfer them
• Assets are intentionally or accidentally excluded from the trust 
• Assets aren't retitled due to delays or timing issues 

For example, if you don't retitle your car into the trust, it remains a personal asset rather than a trust asset. This is why a pour-over will is important—it captures these leftover assets.

Create a living trust with LegalZoom. LegalZoom living trusts include a pour-over will.

Jeffrey M. Salas, contributed to this article.