Pour Over Will

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A pour over will is an estate planning tool used in conjunction with a trust. Creating a trust to hold an individual’s assets for distribution after death has many advantages, including tax advantages. Depending on their circumstances, some people choose not to transfer all of their property into their trust, and many people simply forget to transfer newly acquired assets into the trust. A pour over will transfers, or “pours,” any property belonging to an individual at the time of his death into his existing trust. To explore this concept, consider the following pour over will definition.

Definition of Pour Over Will

Noun

  1. A will that decrees that all assets belonging to the Testator transfer into his or her trust immediately upon death.

What is a Pour Over Will

A pour over will is a will that requires the maker (the “Testator”) to first create a trust and appoint a trustee to handle all or some of the maker’s assets after death. Rather than listing the individual’s assets, and specifying to whom each is to be given, the will simply states that all of the assets in the Testator’s estate at the time of his death transfers immediately into the trust.

In the times of English common law, such a pour over will was considered invalid, as it allowed the Testator to alter disposition of assets through the trust, without adhering to laws governing changes to a will. In modern times, probate laws recognize the need for individuals to have greater control over how their assets are managed and distributed. Most people who create a trust prefer not to transfer ownership of all assets into the trust. This is especially true when the individual needs to maintain liquidity of certain assets, or simply for the sake of convenience.

A pour over will, or pour over clause in a will, specifies that all property and financial assets owned by the individual transfer to the trust, and the control of the Trustee. Assets transferred under a pour over will are still subject to probate, however, unlike the assets already in the trust at the time of the individual’s death.

Advantages of a Pour Over Will

There are a number of reasons it is a good idea to have a will that does nothing but transfer assets into a trust. These include:

  • Ease of Management – ensuring the entire estate is controlled by a single document makes wrapping up the estate much easier.
  • Ensuring Completeness – ensuring all assets, including those left out for the sake of simplicity, and those left out simply because they were forgotten, are placed in the trust, ensures the individual’s wishes are carried out.
  • Privacy – ensuring details of the individual’s estate are kept private, as trusts are not a matter of public record, as are wills.

As an example of the privacy concern, when pop star Michael Jackson’s will was entered into probate, the press and other people flocked to the courthouse to find out to whom he left his estate. These nosy people learned nothing, however, as Jackson had created a pour over will transferring all of his assets into a previously created trust.

Disadvantages of a Pour Over Will

The primary disadvantage of a pour over will is that, like all wills, they must go through the probate process. This means that, while assets already in the trust can be distributed immediately, any assets passing through the will to the trust must be probated, which can take time. In most cases, however, not too many assets are left to be transferred through the will to the trust. If the individual has been diligent in funding his trust, mostly small and less valuable assets are left to pass through the will. In some states, if the value of the assets passing through the will is low enough, there are abbreviated probate procedures available.

Pour Over Will Form

Individuals may obtain a pour over will form from an estate planning attorney, some office supply stores, wealth advisors, and online. As laws regarding required language in different types of wills vary by state, it is a good idea to obtain a pour over will form for the state in which the individual lives. While many people hire an attorney to aid in preparing their estate planning documents, it is possible for someone to create their own will using a pour over will form. The following pour over will sample is not specific to any state, but may provide a guideline to the basic format of such a will:

Pour-Over Last Will and Testament of [insert name of Testator]

I, [insert name of testator], of [insert testator’s address], County of [insert county], state of [insert state], declare this to be my Last Will and Testament.

I.

I hereby revoke all previous wills and codicils.

II.

I hereby declare that I am married, and that my spouse’s name is [insert spouse’s name]. All references in this will to my spouse are to [him or her]. I have [insert number of testator’s children] children whose names and birthdates are as follows:

[insert child #1 name] born [insert child’s date of birth]

[insert child #2 name] born [insert child’s date of birth]

[insert child #3 name] born [insert child’s date of birth]

[Repeat as necessary]

References in this will to “my children” include the children listed above, and any children that may hereafter be born to or adopted by me.

III.

I confirm to my spouse my spouse’s one-half community property interest in all community assets passing under or outside of this will. I intend that this will dispose of all property subject to my testamentary power.

IV.

I give to my spouse, if [he or she] survives me, any interest I may have in the residence in which we may be living at the time of my death, subject to any mortgage or other encumbrance and all unpaid real estate taxes and special assessments which are a lien at the date of my death. If my spouse does not survive me, this gift shall lapse, and my residence shall become a part of the residue of my estate.

V.

I give to my spouse, if [he or she] survives me, any interest I may have in all personal items owned by me at the time of my death, including household furniture, furnishings and fixtures, jewelry, china, silverware, books, pictures, clothing, and all other items of domestic, household, or personal use, and all automobiles, boats, and other motor vehicles. If my spouse does not survive me, then I give the property described in this clause to my children in equal shares.

VI.

All the residue of my estate, I give to [insert name of Trustee], as Trustee under that [insert name of trust] agreement, dated [insert trust agreement date], wherein I am the Trustor, and [insert name of Trustee] is the Trustee. I direct that such residue shall be added to, and commingled with, the trust property of such living trust and shall be held, managed, administered, and distributed under the terms and provisions of the trust agreement and any amendments thereto made prior to or after my death, it being my intention not to create a separate or testamentary trust, nor to subject such living trust to the jurisdiction of any probate court.

VII.

I appoint as executor of this Last Will and Testament [insert name of executor], to serve without bond. I authorize my executor to sell, lease, or mortgage the whole or any part of my estate at either public or private sale, with or without notice, but subject to such confirmation as may be provided by law.

VIII.

If my spouse predeceases me, I appoint [insert name of guardian] as guardian of the persons of my minor children, to serve without bond.

EXECUTION

I sign my name to this Last Will and Testament this [insert execution date], at [insert execution location], county of [insert county], state of [insert state], in the presence of attesting witnesses, who subscribe their names hereto at my request and in my presence.

[Signature of testator]

ATTESTATION

On the date last above written, [insert name of Testator], known to us to be the person whose signature appears at the end of this Last Will and Testament, declared to us, the undersigned, that the foregoing instrument, consisting of [insert number of pages] pages, including the page on which we have signed as witnesses, was [his or her] Last Will and Testament.

Testator then signed this Last Will and Testament in our presence, and at [his or her] request, and in the presence of each other, we now subscribe our names as witnesses.

We declare under penalty of perjury that the foregoing is true and correct.

[witness #1 signature], residing at [insert witness #1 address]

[ witness #2 signature], residing at [insert witness #1 address]

[ witness #3 signature], residing at [insert witness #1 address]

Related Legal Terms and Issues

  • Assets – Property or finances owned by an individual or entity, and regarded as having value.
  • Codicil – A supplement to an existing Will, containing an addition, modification, or explanation of something in the Will.
  • Estate Planning – The process by which an individual arranges transfer or management of his assets in anticipation of death.
  • Probate – The court process by which a Will is proved valid or invalid.
  • Public Record – Any information kept by a governmental entity that is accessible to be viewed by the public. Such information may be anything from a recorded deed to a civil or criminal judgment.
  • Witness – An individual who signs a document attesting the genuineness of its execution.