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What is a Pour Over Will?

Attorney Thomas B. Burton answers the following question: "What is a Pour Over Will?" Attorney Burton explains how a Pour Over Will is a type of Will commonly used in conjunction with a revocable living trust plan, where the Will is designed to transfer any assets you may own in your individual name at death, to your trust, upon death in order to be administered by the trustee named in your trust and distributed according to the distribution pattern laid out in your living trust document. Attorney Burton explains why it is often smart to pair a Pour Over Will with a revocable living trust plan as an extra backup plan to make sure everything is administered inside your trust, just in case you inherit an asset in the future that is not titled in your trust, and you then die shortly thereafter before you are able to transfer title of that asset to your trust, or in a situation where there is an asset you simply forget to re-title into the name of your trust. The Pour Over Will would get the asset into your trust after your death in this situation.

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Welcome back, I'm Attorney Thomas Burton.

I'm an estate planning and asset protection attorney here in Wisconsin and today's topic is 'What is a pour over will?'

So in the estate planning world, you may hear this term 'Pour over will', referred to in conjunction with a living trust plan, a revocable living trust and sometimes, my clients will ask me, "What is a 'Pour over will? I already have a will or I have an old will, why would I need a pour over will?" So the short answer is that a pour over will is a regular last will and testament. It's just a term, we use to describe what we're using the pour over will to do. So if you have a will based plan, your will is going to want to dictate all the distribution pattern of all your assets, after you're gone. So in the will, it's going to want to say, 'I want my house to go to child number one', 'I want $10,000 to the church and then I want the rest split between child number two and child number three' or however you set it out, evenly between all three children and you need that in there because we have to say what will happen to your total estate, once you're gone but a pour over will is often used in conjunction with a revocable living trust. So you can see here, I have the simple illustration, the smith living trust and our goal with putting a trust plan together is that we would avoid probate on all assets because remember, a will plan by definition, must go through probate court upon your death. It becomes a public document, filed with the probate court and it's a public administration, whereas a trust plan is a private administration.

So what a pour over will does is, it would pour over from the will into the trust, upon your death, only if there's some asset that you forgot to retitle into your trust. So I'm going to put up here, bear with me while I draw, this would be the will, let's say and we have it up here, it's kind of out here on the side, we don't want to necessarily use it because if we do our planning properly, we're going to have everything placed inside of our trust by retitling it. Like the deed to our home, we will retitle it into the living trust but the pour over will, will have simplified language saying, if there's something I own at my death that I did not retitle into my trust or make payable on death into my trust then I pour it over to be administered by the trustee as named in my trust. That way we can have all the dispositive details of who gets what, inside the trust plan and the pour over will can incorporate those details by reference. So if your trust splits things evenly between the three children, the pour over will will say, I want the same distribution pattern for any asset that ended up in the will.

Now sometimes people say to me, "Why do I even need a will, I'm setting all this up to avoid probate" and that is correct and that's the goal, so with most of my clients, the goal would be that nothing would pass under the pour over will but I still like to have it in place just in case, there's some asset you would inherit before your death and then you would die quickly, without a chance to retitle it into your trust. So for an example, there could be a relative out there who is leaving you a portion of their real estate, maybe they don't even know they're leaving it to you but they have no will at all and you're in the intestate line of succession. So you end up owning let's say, a one-fifth interest in 80 acres of land in northern Wisconsin from some great-uncle you never knew and you happened to inherit that land on the first of the month when his estate is settled and it becomes jointly titled in your name as a tenant in common, which I don't recommend by the way but I'm just saying this happens. So you have one-fifth interest and then unfortunately, at the end of the month, you're killed in a car crash. Well, you may have just found out about that real estate and you didn't have time to execute a quitclaim deed into your trust, that would be an example of something that then the pour over will would say, pour it over into my trust and my trustee will administer it. So it's a backup plan that we don't want to have to use but it's there just in case.

So the pour over will is a regular last will and testament and we sign it in front of two disinterested witnesses but generally, it's shorter than a will, where you're doing a will plan alone, no trust, it would be a shorter will and it would simply refer back to the trust for the details on how your estate is administered. It will likely also name the same person as trustee of your trust as personal representative under the will, if the will ever needed to be used.

So that's the short explanation of a pour over will. Now are you strictly required to have one with a trust plan? No, you aren't but for the reason I mentioned, I recommend executing one at the same time you execute your trust just for that extra peace of mind. We all know, life can have twists and turns and come up, things can come up unexpectedly and even if you meet with your attorney and get everything retitled into the trust or transferred by transfer on death beneficiary designation, to me it just makes sense to have the peace of mind of having a pour over will in place, just in case anything gets forgotten outside of the trust. It could pour it over into the trust upon your death.

So I hope this explanation is helpful to you of how a pour over will works. If it has been helpful please consider giving the video a Like, so that others can see and benefit from this information as well.

Thanks for watching and we'll see you next time.

© 2021 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.


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