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What is a Pour Over Will?



At Surasky Law Firm, many of our clients are surprised at the estate planning options available to them. One is a pour over will, which combines elements of a trust along with a traditional last will and testament. We use this article to explain the pour over will in greater detail as it might be just what you need to protect your assets and your loved ones after death. Call our Aiken, SC wills and probate lawyer if you have follow-up questions.


How a Pour Over Will Works

A pour-over will has two parts: a living trust and a will. Many people create a living trust (also called an inter vivos trust) to hold property while they are alive.

A trust has three parties:


· The grantor: this person creates the trust and transfers their assets into it.

· The trustee: this person manages the trust assets.

· Beneficiaries: these people can use the assets or benefit them.


With a living trust, our client serves all three roles while alive. They can manage and use the trust assets. However, they can also name a successor trustee to take over when they die, and they can lay out in detail who should inherit the trust assets when they are gone. In this way, a trust serves a similar function as a will.


Few people put everything they own into a living trust. Instead, they may transfer some assets but keep others in their own name. Their goal, however, is for all assets to pass through the trust at death, which is why they create a pour over will. This type of will automatically transfer their non-trust assets into the trust at death. These assets are then distributed according to the trust.


What is a Pour Over Will?

Here is a simplified example. Imagine that Paul owns a house, a car, a dog, and $10,000 in the bank. He creates a living trust and transfers ownership of the car to the trust while alive. However, he keeps the house, dog, and money in his own name.


Paul discusses with his attorney who he wants to inherit his property when he dies. He would like the house and car to go to his sister, while his two sons should split the money in the bank. He wants to leave the dog to a friend.


If Paul died without a pour-over will, then his sister would get the car because it was already in the trust when he died. But the other assets are not. And there isn’t a way for him to transfer these assets to the trust now that he has passed.


As heirs, his sons would probably inherit the house, cash, and dog under the rules of intestate succession. Paul can avoid this from happening by creating a pour over will. The will instructs that all assets he owns at death should be transferred to the trust.


Why Would You Create a Pour Over Will?

A pour-over will provides protection to people who want to use a trust to transfer assets after death. For one thing, you might forget to transfer the asset to your trust. There is a risk that, without a will, these non-trust assets will pass by intestate succession. Creating a pour over will guarantees your assets get distributed according to the trust based on your wishes.


Some people also obtain assets or cash after creating their trust. They don’t want the hassle of constantly needing to retitle assets into the name of the trust. A pour over will essentially transfer everything at death.


Pour over wills also simplify the estate planning process. With a traditional will, you need to identify a beneficiary for every piece of property. With the pour over will, you direct all assets to go to your trust, which are then distributed according to the terms of the trust.


Using Revocable or Irrevocable Trusts

Most of our clients use a living trust, also called a revocable trust, as part of their estate plan. This is a simple trust that you can control while you are living. That means you can move assets in and out as you please. Your pour-over will then pour any remaining assets into the trust at death.


However, some estates might want to use an irrevocable trust. There are tax advantages, which could be considerable, depending on the size of the estate. However, the grantor loses control of the assets in the irrevocable trust, which can’t be unwound later (that’s why it is “irrevocable”).


You can use a pour-over will with either a revocable or irrevocable trust, depending on your estate planning goals. Speak with an estate planning attorney to decide which trust you need.


Is a Pour Over Will Right for You?

It depends on your goals. There is no reason to use a pour over will unless you want to create a trust. There are many advantages to trusts, including increased privacy and the speed with which the trustee can distribute assets. Because trusts do not pass through probate, you can reap these advantages for your heirs and beneficiaries.


Pour over wills help simplify the estate planning process. As mentioned above, there is a risk that some assets you own won’t be in the trust when you die. That means they will get distributed inside probate and could go to people you want to avoid having them.


Of course, the assets poured from your estate into the trust might still need to go through probate. The probate process can take 9 months or more. They will gain faster access to those assets already in the trust before you die.


Call Surasky Law Today to Discuss Pour Over Wills

Pour over wills provide peace of mind to our clients but they are just some of the estate planning tools you need. But they have a critical role to play, ensuring that the right people inherit from you. Please call our firm today to speak with our lawyer.


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