What Is A Pour Over Will?

Christy Bieber has a JD from UCLA School of Law and began her career as a college instructor and textbook author. She has been writing full time for over a decade with a focus on making financial and legal topics understandable and fun. Her work has appeared on Forbes, CNN Underscored Money, Investopedia, Credit Karma, The Balance, USA Today, and Yahoo Finance, among others.

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Adam has resided at the intersection of legal and journalism for two decades. An award-winning journalist and legal strategist, he’s covered high-profile trials in Florida. After law school, Adam and spent two years clerking for a U.S. District Court judge. He researched and wrote legal precedent in published opinions on behalf of the Court. He has been an editor, columnist and journalist at the Miami Herald, The Dallas Morning News, The Oregonian, Golf Digest, FindLaw.com and other media outlets. He lived in Colombia and Argentina teaching legal English to attorneys and law students. He is also a Spanish-language subject matter expert. An avid waterman, he surfs and scuba dives frequently.

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Published: Jan 29, 2024, 7:00am

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A pour-over will is a very simple document instructing that any assets you personally own at the time of your death should be transferred to a living trust you have previously created.

A living trust, or a revocable trust, is often used as part of an estate plan. During your lifetime, you can create the trust and transfer ownership of assets to it. You can be the trustee while you’re alive and of sound mind and can name a backup trustee who will take over management of trust assets when you become incapacitated or pass away. Your living trust also includes the names of your beneficiaries.

Upon your death, assets held in the living trust can transfer using the trust administration process. Assets held outside of the trust, on the other hand, would need to be addressed in some other way.

If you did not provide instructions for what happens to those assets, your state’s intestacy laws would apply. These laws would distribute the assets to family members based on their relationship to you—but the distribution may not be the one you would have preferred.

You can use a pour-over trust to instruct that any assets which weren’t in the trust at the time of your death will move into it after your death. This will ensure that those assets can be transferred through the trust administration process as well.

Why Do You Need a Pour-Over Will?

When you create a living trust, you must fund it by re-titling assets so the trust becomes the official owner. But it is very possible that you will not do this with everything you own.

For example, you may have assets that would be inconvenient or impractical to transfer into the trust. Or you may acquire assets after you create the trust and pass away before you have a chance to transfer them or may simply forget to change the title of some assets.

Since you are creating a trust specifically to facilitate the effective management and transfer of property through the trust administration process, it typically makes sense to have all of your property moved into that trust upon your death.

How Do You Create a Pour-Over Will?

The first step is to create a living trust since you will need something for assets to pour into. You can work with an attorney to help you to complete the trust creation process.

Next, you will draft your will and provide instructions for all assets not otherwise accounted for to pass into the trust upon your death. Just like any other last will and testament, a pour-over will must be signed by the number of witnesses required by your state’s laws (usually, you will need two witnesses).

Working with an attorney to draft this document can also be beneficial to ensure you meet all requirements to create a valid will so your instructions are followed upon your death.

What Happens if You Don't Use This Estate Planning Tool?

If you don’t address what happens to assets held outside of your living trust after you pass away, the court will need to determine what happens to them. States have intestacy laws which specify which family members should inherit.

The specifics of which heirs receive money and property under intestacy laws will depend on which living relations you have. For example, if you are married and have children from outside that marriage, generally a portion of the assets in your estate will pass to your spouse and a portion to your children.

Intestacy laws may not result in your preferred distribution of assets. Further, assets will have to transfer through the probate process, which means the transfer will become public record and the process can take several months, if not longer.

Pros and Cons

There are both pros and cons to using a pour-over will. Here are some of the advantages:

You can facilitate the private transfer of assets during the trust administration process.
You can simplify the process of transferring your assets by ensuring everything is transferred through the trust administration process.

And here are some of the biggest disadvantages:

Your pour-over will may still need to go through the probate process before the assets can be transferred into the trust, but this will depend on the assets left behind in your personal estate and your state’s laws.
The living trust will need to remain active until all of the assets from the personal estate are transferred to it and distributed.

In most situations, those with living trusts who want all of their assets to pass through the trust administration process will find the pros outweigh the cons.

Getting Legal Help From an Estate Planning Attorney

An estate planning attorney can provide you with help understanding your options for transferring assets and providing for loved ones. Your lawyer will help you to determine if a trust and a pour-over will are right for you or whether other estate planning tools are a better fit.

Frequently Asked Questions (FAQs)

What is the difference between a pour-over will and a will?

A last will and testament generally provides specific instructions on which heirs will inherit the assets of the deceased left behind. For example, it could instruct that the deceased person’s assets be left to spouses, children, or a charity.

A pour-over will, on the other hand, instructs that the assets left in the personal estate should be transferred immediately to a living trust the deceased previously created so the property can be passed to beneficiaries through the trust administration process.

Why would you want a pour-over will?

You may want to create a pour-over will to make sure that any assets which remain in your name at your death are included in your living trust. A living trust allows you to avoid probate and transfer assets through the trust administration process, but you must transfer money and property into the trust. If you have property that you failed to transfer during your lifetime, you can use a pour-over will to make sure it is transferred to the trust upon your death.

What are the benefits of making a living trust with a pour-over device?

When you make a living trust you can name a backup trustee to manage assets on behalf of your beneficiaries and to facilitate the transfer of those assets through the trust administration process which is more private and quicker than probate.

Unfortunately, not all of your assets may be owned by your trust since you have to transfer title in order for the trust to take ownership. Using a pour-over device allows you to move all of your remaining property into your living trust so that anything you personally owned at death can also be transferred through the trust administration process.