While most people have heard of a basic Last Will and Testament, they may not know what a Pour Over Will is and how it works with a Living Trust. As an Orange County will lawyer, I’d like to explain this estate planning tool.
Essentially, a Pour-Over Will is used in conjunction with a Living Trust, either Revocable or Irrevocable, and directs that any assets you hold solely in your own name outside of a trust at the time of your death to be left to your Trust and then distributed to your beneficiaries according to the Trust’s guidelines.
Here’s a quick example of how this works: Let’s say that at the time of your death, you owned a piece of real estate property that, for whatever reason, you did not transfer to your Revocable Living Trust. Since this property had not yet been “funded” to your Trust, it means that this asset would fall outside of your Trust and would not receive any of the protections that you had hoped to take advantage of when you created your estate plan in the first place. However, a Pour-Over Will would ensure that the asset would still wind up in your Living Trust.
The Pour-Over Will acts as a safety net to make sure that all of your solely-owned assets will be distributed according to the terms of the Living Trust after you pass away.
Unlike a traditional Last Will and Testament, a Pour-Over Will does not need to include explicit instructions on how the estate assets will be distributed. Instead, it merely has to state that the assets should go directly into the Trust. This is an important aspect of estate planning for anyone who is concerned about privacy and does not want their personal affairs made public through probate court proceedings and notices.
One thing to keep in mind, though, is that the Pour-Over Will is subject to probate proceedings in general – just like a traditional Last Will and Testament. The length and complexity of the probate proceedings will depend on the amount of assets that were solely owned outside of the Revocable or Irrevocable Living Trust. The Trust will have to continue to exist for however long the estate is in probate, so any Trustees you name should understand that their responsibilities may extend for a longer amount of time than they may have anticipated.
If you have any questions about the difference between a Last Will and Testament and a Pour-Over Will, or if you’d like to review your existing estate plan to make sure your assets will be distributed according to your wishes after you pass away, please call (949) 333-3702 to set up an initial consultation with an Orange County will lawyer.
