A pour-over will is often used to compliment a living trust as part of any trust-based estate plan.
In order for a living trust to work properly, the grantor of the trust must transfer his/her property and assets into the trust through a process called “funding.” This involves the grantor, during their lifetime, changing the title of their property and assets from their name, personally, into the name of the trust (with the exception of 401k and retirement accounts).
However, property and assets sometimes get overlooked and do not get retitled into the name of the trust before the grantor’s death. This is why it is advisable for someone with a living trust to also have a pour-over will in place prior to their death.
How a Pour-Over Will Works
A pour-over will serves as a catch-all and acts to pour over into the grantor’s trust all of the grantor’s property and assets that were not retitled in the name of the grantor’s trust prior to the grantor’s death.
How this works is that a well-written pour-over will names the grantor’s trust as the sole beneficiary of a grantor’s probate estate. The grantor’s probate estate consists of all of the grantor’s property and assets that were titled in the grantor’s personal name at the time of their death.
In addition, the pour-over will should name a personal representative (usually the same person serving as trustee of the grantor’s trust) to administer the will after the grantor’s death. The personal representative named in the will should submit the will to the probate court after the grantor’s death. The Court will either accept the personal representative’s appointment as designated in the will or appoint another person if the personal representative designated in the will cannot or is unable to serve.
Pour-Over Will and Probate
After the Court approves or appoints a personal representative of the grantor’s probate estate, the personal representative (also called an “executor”) transfers into the trust all of the property and assets in the grantor’s probate estate. Then, the trustee designated in the trust will distribute all trust property and assets to the appropriate beneficiaries according to the provisions of the trust. This ensures that the grantor’s wishes - as to whom will receive their property and assets, as well as who will distribute those assets – are specifically followed.
Unfortunately, this is the one disadvantage of using a pour-over will - that some property and assets must go through probate. Florida’s probate process, as we know, can be expensive and time consuming and becomes part of the public record. Nevertheless, while property and assets covered by the pour-over are required to go through the Florida probate process, the ultimate distribution of property and assets is still controlled by the terms of grantor’s trust, which do remain private and outside of probate.
As with any other legal document, using a DIY or pre-printed pour-over will is risky and you should always consult with an estate planning attorney to ensure your specific goals and all legal requirements are met.
If you have any questions about creating a pour-over will in Florida, or about any other estate planning tools, please contact me today!