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What is a Pour-Over Will?

If you have a Revocable Living Trust, you should also have a Pour Over Will. If you don’t have a Revocable Living Trust, a Last Will and Testament (commonly called a “Will”) is the traditional document you would use to leave instructions regarding what should happen to your possessions and assets when you die (who gets what). It also instructs who shall carry out your wishes (who’s in charge). Why would you still need a Will if you were using a Revocable Living Trust to take care of these matters?

Your Revocable Living Trust will only apply to those assets and possessions that you have placed into the Trust (called “funding the Trust”). When you first establish your Trust, get all the assets that need to be in the Trust into the Trust. However, as time goes on, you may acquire new or different assets or possessions, and you may not remember to place those into the Trust. This can also happen as the result of mistakes or oversights by third parties. Whatever the reason, sometimes assets and possessions that should have been in the Trust are not. We try hard to avoid this situation, but we also need to build a contingency plan just in case it happens.

If you pass away and there are assets outside of the Trust, those assets may have to go through the probate process. This, of course, is what you were trying to avoid in the first place. However, it is made so much worse if you also do not have a Will in place. This is because those assets that now must go through probate will be distributed according to state law rather than according to your individual wishes.

This problem can be avoided by having in place what is commonly referred to as a “Pour-Over Will.” A Pour-Over Will is a little different from a traditional Will because it will give instructions to place any of your assets that were not in your Trust into your Trust as soon as possible. This type of Will still has to go through the probate process, but probate will only apply to the assets that were left out of the Trust and can typically be probated less formally. While the goal of using a Revocable Living Trust is to avoid probate altogether, a Pour-Over Will is an important “just in case” tool that users of Trusts should have in place.

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