Last Will and Testament

Understanding Pour-Over Wills

The Elder & Disability Law Firm, APC Feb. 14, 2024

Estate planning involves creating legal instruments that will distribute assets to your loved ones when you’re gone. The most commonly known document for doing this is a last will and testament, commonly referred to as just a will.   

However, because wills need to go through probate court proceedings, which can take months, many people create revocable trusts, also known as living trusts, whose asset distributions and other instructions can be completed quickly outside of probate.  

The question is if you have a living trust, do you also need a will? The answer is often yes. For one thing, a trust cannot designate a guardian for your minor children, and for another, a special type of will – called a pour-over will – can ensure that any assets you accumulated after creating your living trust will be “poured” into your trust, though the process must still go through probate.  

For all your estate planning needs in or around Redlands, California, contact The Elder & Disability Law Firm, APC. We help individuals and families of all ages create estate planning documents to provide peace of mind for everyone involved. We proudly serve clients in Rancho Cucamonga, Riverside, and Palm Springs. 

What Is a Pour-Over Will? 

A pour-over will directs that the personal representative named in your will – whom the probate court will name the executor of your estate – makes sure that any assets you neglected to transfer to your living trust will be so transferred, though it may take a while to do so given court protocol. A pour-over will contrasts with a testamentary will, which directs that all personal assets be transferred into a living trust when you pass away. 

What Happens If I Don’t Have a Pour-Over Will? 

Say, for example, you created investment accounts, put together an art collection, bought an antique car, won the lottery, received an inheritance, or otherwise obtained assets after creating your living trust, then those assets can be transferred to your trust through your pour-over will.  

An important point to note here is that jointly held assets, such as real property, or investments with named beneficiaries, such as retirement accounts or life insurance policies, are not subject to either probate or trust distribution. Only personally held assets are assets that can be distributed through a will or living trust. 

Pros and Cons of a Pour-Over Will 

The positive aspect of a pour-over will ensure that your assets are transferred to your living trust – or even an irrevocable trust – to be distributed according to your wishes. The negative aspect is that any type of will must go through the administrative and legal hurdles of probate court proceedings, which can take months if not longer, depending on the size of the estate.   

A pour-over will is a kind of a makeshift measure to make sure every asset ends up in your trust. If there are no overlooked assets, then a pour-over will really doesn’t stand in the way of taking care of your loved ones. However, anything that happens in probate court becomes a part of the public record, whereas a trust is a private matter that no one outside of those involved can have access to. 

The Duties of the Executor and the Trustee 

If there are assets to be poured into a trust, then the executor of the estate named in the pour-over will must follow probate court procedures to transfer the assets. The trustee of the revocable (living) or irrevocable trust, on the other hand, is pretty much free to distribute assets already assigned to the trust to those so designated. When the pour-over assets finally become part of the trust, then those assets can be distributed according to instructions as well. 

Find Out If a Pour-Over Will is Right for You 

“Better safe than sorry” is a time-honored expression, and it can apply to pour-over wills as well. A pour-over will can help ensure that any overlooked or later-gained assets make it into your trust, so your loved ones and beneficiaries can receive what you leave to them.  

For all your questions and concerns about living trusts and pour-over wills, contact The Elder & Disability Law Firm, APC. Reach out immediately with all your estate planning needs