Do You Need a Pour Over Will?
A last will and testament is a special type of legal document that allows you to spell out your final wishes.
In general a will covers three important decisions: (1) who will inherit your estate, (2) when they will inherit it, and (3) who will be in charge of settling your estate, referred to as the personal representative or executor (male) or executrix (female).
Who Can Make a Will in the U.S.?
You may be surprised to learn that in the United States the laws governing wills vary widely from state to state.
Therefore, the person making will, referred to as the testator (male) or testatrix (female), must follow the laws of the state where they live in order to make sure their will is legally recognized in probate court.
While as mentioned above state laws governing wills vary widely, there are really no special or "magic" words required for making a valid will. In general, however, the testator/testatrix must be age 18 or older or an emancipated minor and must sign and date the will at the end. Aside from this, while some states recognize a "holographic will" - meaning one that is written or typed by the testator/testatrix and signed and dated at the end - other states require wills to be signed and dated in front of at least two witnesses, and some states even require the witnesses to be "disinterested," meaning that they are not related to the testator/testatrix or are not named in the will as a beneficiary or personal representative/executor/executrix.
Pour Over Will - A Special Type of Will Used With a Trust
A pour over will is a unique type of will that is only used in conjunction with a revocable trust or an irrevocable trust.
Because the trust agreement is the legal document that states who is getting what and when they are getting it after the person who has created the trust (referred to as the grantor, settlor, trustor, or trustmaker) dies, the trustmaker's pour over will only covers two important decisions: (1) who is getting what, and (2) who will be in charge of settling the trustmaker's estate.
Usually the only beneficiary named in the pour over will is the trustee of the testator's/testatrix's/trustmaker's revocable trust or irrevocable trust: "I give my residuary estate to the Trustee of the John Doe Revocable Trust dated July 1, 2014, as may be amended from time to time." There is no need to list the beneficiaries of the trust in the will, nor does the will state when the beneficiaries will receive their inheritance. A personal representative/executor/executrix is also named in the pour over will and it also spells out the powers that can be exercised by the personal representative/executor/executrix, including how bills and taxes should be paid. In addition, if the testator/testatrix has minor children, then the pour over will designates a guardian for the children until they each reach 18.
Since the pour over will only covers these limited decisions, it is typically a short legal document, only 4 or 5 pages in many cases.
Benefits of a Pour Over Will/Trust Estate Plan
Why would someone use a pour over will coupled with a trust as the governing documents of their estate plan instead of just a will? For three reasons:
- Planning for mental disability. A will only goes into effect after you die and so it cannot be used for disability planning. On the other hand, a trust can be used to make a plan in case you become mentally incapacitated.
- Avoiding probate. Property owned by a trust when the trustmaker dies will avoid probate, which is a costly and time-consuming court process.
- Keeping your estate plan private. A will is a public court record that anyone can read. But even if a pour over will is probated, it will reveal only a limited amount of information as discussed above. The trust into which the will pours over does not get filed at the court house and remains a private document.
Famous Pour Over Wills
Much to the chagrin of curious fans, many celebrities have chosen pour over will/trust estate plans which have kept their final wishes confidential:
Of course, while some celebrities used a pour over will/trust estate plan, nonetheless their trusts became available to the public because their estates were involved in litigation:
Contrast this with celebrities who used a will as the only governing document of their estate plan:
Of course, there are quite a few celebrities who failed to make any kind of estate plan at all: Celebrities Who Died Without a Will.
Should You Use a Pour Over Will/Trust Estate Plan?
If you are not sure if a pour over will coupled with a trust is the right type of estate plan for you and your family, then refer to the following articles:
