What is a pour-over will with a living trust?

For many people, a last will and testament is the cornerstone of their estate plan. This important document gives you control over how your assets are distributed after you pass away — and to whom.  

But what if you decide to create a living trust instead? Even if you use a trust as your primary estate planning tool for distributing your assets after you die, you should also consider having a pour-over will.

With a pour-over will, any assets not included in your trust are automatically transferred to your trust after you pass away. Think of it as a kind of “safety net,” capturing any property you didn’t transfer to your trust while you were alive.

Why do I need a will if I have a living trust?

A living trust is a legal document that lets you direct how your assets are distributed after you die. A living trust “owns” the assets transferred to it, while still allowing you to use and control that property during your lifetime.

Some people create a trust to avoid the often long and costly probate process, which is the court-supervised process of distributing your assets according to your last will and testament.

If having your assets avoid probate is important to you, transferring eligible assets to your trust can help. Because you’ll likely continue acquiring new property throughout your life, having a trust requires continuous management and maintenance. It can be easy to forget to transfer new property into your trust, or not have time to do so before you pass away.

This is where a pour-over will comes into play.

What is a pour-over will?

A pour-over will is a type of will that works in partnership with a living trust. It’s designed to “catch” property you didn’t put in your trust during your lifetime — letting the court know you want these assets transferred to your trust after you die.  

To avoid confusion, your will shouldn’t include property that you’ve already transferred to your trust.

Without a pour-over will, assets not included in your trust are likely to be treated as if you died without a will. This is known as “dying intestate.” When this happens, your non-trust assets will be distributed according to your state’s intestate succession laws — which may be very different from your personal wishes.

How do you write a pour-over will?

Creating a pour-over will is a fairly simple process. You’ll need to:

1. Set up a living trust

Before you can make a pour-over will, you first need to create a living trust.

If you have a large or complex estate, speaking with an estate planning attorney can help provide guidance for making your living trust. But if your estate is simple and straightforward, you can create a trust on your own online. You can take advantage of FreeWill’s revocable living trust tool.

You’ll make many decisions when creating your trust, including what type of trust will work best for your needs, what assets to transfer to your trust, and who should receive each of these assets.

One of the most important decisions you’ll make is who to name as trustee. This is the person who’ll manage your trust and distribute its contents according to the terms of your trust document after you die.

2. Name your trustee as the beneficiary in your pour-over will

Once you’ve created your trust, you can start laying out the terms of your pour-over will.

First,  you’ll name a residual beneficiary in your pour-over will. This is the person who will receive your residual estate — that is, the assets that weren’t transferred into your trust before you died. If you want your residual estate to be transferred to your trust, then you should name your trustee as your residual beneficiary.

To do this, you shouldn’t only use your trustee’s name. If you do, that person will inherit your residual estate in their personal capacity. Instead, you should list this person as “the trustee” of your trust. You’ll also want to carefully and precisely describe the trust.

For example, you can include a line in your will that reads: “I leave all of the residue of my estate to the trustee of the trust created by the Declaration of Trust dated [declaration date], and executed by me as grantor, as may be amended and/or restated in the future.”

3. Name a will executor

When making a pour-over will, you’ll also need to name someone as will executor to carry out the wishes in your will. If your will indicates that you want your residual estate transferred to your trust, then your executor will be the person responsible for carrying out this task.

Think of it like passing a baton: your will executor moves property into your trust, and then your trustee has control over those assets.

Will-makers often choose their trustee to also be their will executor. This can streamline the legal process because there’s only one point of contact for your trust and estate. However, some people prefer naming two different people. This provides checks and balances, and prevents a single person from having complete control over everything in your estate.

If you decide to name two different people, it’s important to choose people you trust. You’ll also want to choose people who get along with one another — after all, they’ll be working closely with one another to manage your estate.

4. Consider your other estate-planning needs

Pour-over wills can also help address other estate-planning issues, just like a traditional will. With a pour-over will, you can:

• Nominate a guardian to care for your minor children
• Nominate a guardian for your pets
• Pass on everyday vehicles, like your car or motorcycle — which aren’t usually included in a living trust

Learn more about what assets should (or shouldn’t) be transferred to your living trust.

Do assets in a pour-over will avoid probate?

No. While assets you place in a trust can be distributed directly to your beneficiaries without going through the probate process, anything you don’t transfer to your living trust must go through probate court. This can cost your loved ones additional time and expense. That’s why it’s important to maintain your trust and promptly transfer any new property into it during your lifetime.

Is a pour-over will right for me?

If you have a living trust, a pour-over will is a powerful document that can “catch” any property you didn’t transfer to your trust before your death. But because property in your pour-over will still has to go through probate, keeping your trust up-to-date is important.

You can use FreeWill to set up you revocable living trust, which automatically includes the option to create an accompanying pour-over will. Get started today.

Not sure a pour-over will is right for you? There are several other will types that may be a better fit, including mirror wills for couples and simple wills for individuals.

If you’re ready to make your will, FreeWill’s here to help. With our free will-making tool, you can create your will in as little as 20 minutes.