Unlike other wills, the pour-over will is not a stand-alone document. It is meant to be used along with a trust as a safety net and to do things a trust cannot, such as naming a guardian for your children.
A pour-over will can be used as a way to capture any items that cannot be put in a trust or may have been left out of another will as an alternative to a codicil/clause.
You cannot designate a guardian through a living trust. You will need to create another document at the same time to indicate who you would want to take care of your minor children in case both you and your spouse die. This can be done with the pour-over will, which will be included with your trust.
Even if you have no minor children, you should probably create a pour-over will and name the trust as beneficiary to ensure the trust has all your unaccounted for assets.
Similar to a pour-over clause in a last will and testament which names a beneficiary for any unaccounted for assets, the pour-over will can capture the left-over assets and place them in your trust.
- These could be new assets you have not yet been able to add to your living trust before your death or other assets inadvertently excluded from your trust, any personal items, or assets without a named beneficiary.
- You should include a general statement that any unaccounted for assets be automatically transferred to a previously established trust upon your death. If you do this, all of your estate will be in one trust.
- While it is important to have a pour-over will for these reasons, these assets must now go through the probate process.
- Without a pour-over will, remaining assets would be subject to laws of intestate succession and have to go through the probate process where the court would decide on the beneficiaries who would receive the assets directly.
- The will can designate beneficiaries in case the trust is unfunded or becomes invalid, for whatever reason.
- Beneficiary information for the trust and the will should be consistent.
A pour-over will must also be created according to the typical will formalities, which include that the:
- Testator (you) has capacity;
- Will is in writing;
- Will is signed by the testator; and
- Signing is witnessed.
The Uniform Testamentary Additions to Trust Act dictates several requirements for a pour-over will to be honored by the probate court.
- The will must include the intent to incorporate the trust, the trust must identify the pour-over will, and the trust document must be created prior to or at the same time as the will.
- Any probate assets transferred to a living trust are treated the same as other assets in the trust.
- Some jurisdictions require that if the trust document is amended, the pour-over will must also be updated, either by creating a new will or using a codicil. If you revoke the trust and the pour-over clause is neither amended or revoked, the gift is managed by the probate court.