Listen to Lawrence Letter: How does a pour over will work?

May 10, 2021
We had our trust drawn up by Davidow and would like to know how a pour over will works.
First I want to point out that a “pour over will” is not a will for “poor” people, something I have heard people express in the past.
A POUR OVER WILL is a type of will that works with a trust estate plan where the goal is to avoid probate; that is, the goal is not to use a will! Getting confused?
Remember, a will is a worthless piece of paper until two things happen: 1, you die….and 2, your will gets probated. This is usually not a big deal. Probate is the process of using your will to legally transfer your assets, with court supervision. In some cases, this process can be expensive and/or take longer. In such cases (the minority I believe), the goal becomes to find a way to have your assets pass to your intended without the need of the will.
How can assets pass without probate of the will? There are three main ways that this can happen. First, all jointly held assets with right of survivorship avoid probate, automatically passing to the surviving joint tenant. Secondly, any asset that names a designated beneficiary will, upon presenting a death certificate, be paid immediately to those beneficiaries without probate. Lastly, any assets held in a trust (revocable or irrevocable) that names beneficiaries, will pay out the trust assets upon your death to those named beneficiaries without probate. If ALL of your assets are held in any of these three ways, then you will not ever need to probate a will.
So, if all of your assets are set up to avoid probate, then why spend the money to have a will at all?
What if you screw up the plan and some asset of yours ends up in your name alone (not joint, no beneficiary, not titled in the trust)? If this happens, then you will need a will to distribute that asset. I know you meant to get to it…but you just didn’t.
You may also have done everything right but still end up with an asset at your death that needs to go to probate, for example, a lawsuit. What if you died on the Long Island Expressway or at the hands of a negligent doctor and your estate has a lawsuit against the other driver or the doctor? In such a case, your will must be probated to appoint the Executor who will bring the lawsuit and then distribute the money awarded to your estate. You see, STUFF HAPPENS!
So this is the context for a POUR OVER WILL. More specifically, in just about every case where a client has a plan that involves a trust, where at least one of the goals of that trust is to avoid probate, then I will also have you execute a will that coordinates with the trust. In this case, your will simply says “do what my trust says.” THE WILL NAMES YOUR TRUST AS BENEFICIARY! So, the POUR OVER WILL is just the “belt and suspenders” approach to estate planning. If for whatever reason, the will needs to be probated, the executor will pick up the probated assets and POUR them OVER to the trust for maximum coordination of your plan.
Like a decanter pouring wine into a wine glass.
Well, that is enough for today. I think it is time for a glass of wine! 😊
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