Understanding Pour-Over Wills
Sept. 15, 2023
According to a 2023 survey by Caring.com, two out of every three Americans don’t have any kind of estate plan documents in place. Even though drafting a will is one of the most important things you can do to ensure your loved ones are taken care of, it’s shocking how many people haven’t done so. Most people also don’t know what their other options are such as using a trust and a pour-over will.
If you’d like to learn more about the alternatives to a traditional will, give us a call at Davidson Estate Law in Oakland, California. Here, we’re able to represent clients in Walnut Creek, Berkeley, San Francisco, El Cerrito, Alameda, and throughout the Bay Area.
What Is a Pour-Over Will?
When you meet with an estate planning attorney, they’ll sit down with you and assess your goals to decide what documents will best meet your needs. For some, this will mean using a revocable living trust and a pour-over will. The first questions you’ll need to answer are, “How does a pour-over will work?” and “Why do I need to use a trust with it?”
A revocable trust works similarly to a will in that you assign certain assets to be given to a beneficiary after you pass away. However, with a trust, you turn ownership of the asset over to a trustee while you’re still living, so they can then immediately transfer the asset to your heir. You can also make changes to the trust at any time. Using a trust bypasses the process of probate which can save your family time and money.
But what happens to assets that aren’t in a trust? That’s where a pour-over will comes into play. A pour-over will is used in conjunction with a revocable trust to account for any assets that were left out of it. Upon your death, these assets are “poured over” into your trust and distributed under the terms of the trust.
What Happens if I Don’t Have a Pour-Over Will?
If you don’t have a pour-over will, any assets that were left out of your trust will have to go through probate and likely be subject to the state’s intestate succession laws. This means that if you don’t specifically name the asset and who it should go to in a will or trust, then you have little control over what happens to it.
Pros and Cons of a Pour-Over Will
The advantages of a pour-over will are quite clear, and if you’re already using a living trust, it only makes sense that you use a pour-over will with it:
Using these two estate planning documents together will simplify the process for your executor and loved ones.
Using a pour-over will ensure you don’t miss any assets and can take the stress out of estate planning.
Lastly, once assets are in your trust, they are kept completely private from the public.
However, there are some disadvantages to a pour-over will. For instance, the assets will still have to go through probate before they can be transferred into your trust. Additionally, assets that aren’t initially put into the trust can be delayed several months before they’re able to be distributed.
The Duties of the Executor/Trustee
When you write a will or a trust, you’ll have to name someone as the administrator or trustee. So, what are the duties of the executor and trustee in a pour-over will?
Many people choose to name the same person as both their executor and trustee to simplify the process. This person is then responsible for administering both documents and ensuring the assets get to the right beneficiary. If there is a separate executor for the will, their main job is ensuring the assets get transferred over to the trust.
Turn to Trusted Legal Assistance
If you're in the Oakland, California, area and would like to learn more about your options for estate planning, specifically how to use a trust and pour-over will, call us at Davidson Estate Law.