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A pour-over will is a specific legal document used in trust-based estate planning that acts as a catch-all backup to a trust. It directs any assets remaining in an individual’s name at the time of death to be transferred (“poured over”) into their trust, ensuring all assets are managed under the prearranged plans. While it simplifies distribution, these assets do still go through probate.
Pour-over wills are an important part of any estate plan that intends to distribute all your assets through your trust. Your pour-over wills ensure that any assets not already included in the trust go to your trust rather than directly to heirs. Pour-over wills are used in Wisconsin as part of trust-based estate plans.
Nobody knows what the future will hold, so an important aspect of estate planning is planning for a broad variety of possibilities. The pour-over will provides security against future possibilities that could otherwise poke holes in your estate plan.
Anyone who wants their property to pass through their trust rather than probate should have a pour-over will. Pour-over wills are especially important for trusts with special distribution plans. A special distribution plan could be controlling the rate someone receives an inheritance, having an inheritance held until someone reaches a certain age, or even disinheriting someone. These are all situations where assets passing outside of the trust can ruin your careful plans.
Your pour-over will does not help you avoid probate. Instead, the pour-over will ensure that when things do go through probate, they are put into your trust. In this way, the pour-over will works together with your trust to ensure your assets are all distributed according to your wishes.
While a pour-over will does not help you avoid probate, ensure that your wishes are followed rather than your assets being distributed as the law would suggest. It also grants other benefits of trust planning, such as death tax deferral and minimization, asset management for heirs, future disability planning, and clarity of estate administration.
The core of a pour-over will is the distribution provision that says, give everything I own to my trust. A pour-over will often has another provision that says, if for any reason my trust is invalidated, distribute my assets according to the terms of my trust. This way, even if your trust is for some reason voided after your death, your assets can still be distributed how you want through probate. The pour-over will in your trust estate plan is like a safety net to catch property that would otherwise fall out of the trust for a variety of reasons.
The pour-over will affects all assets titled in your name, no matter the type of asset or where they are situated. Since these assets are not owned by your trust, they are part of your “probatable estate.” That means they might need to be probated to get your name off the title after your death.
The pour-over will acts as a legal catch-all and “pours” any remaining assets into your trust. It does not affect assets that are already in your trust, because those assets are not part of your probatable estate.
The revocable living trust is the most common kind of estate planning trust, and it goes hand in hand with a pour-over will. It is important that if you revoke the trust before you die, you also change your will, so it’s not directing your probatable estate to a trust that doesn’t exist.
Your irrevocable trust should also be accompanied by a pour-over will if you intend for it to cover of all your assets. Whatever kind of trust you have, the bottom line is that if you intend for your trust to dispose of all your assets after your death, you should have a pour-over will to make sure all your assets make it into your trust.
A pour-over will is a very different thing from a living will. On one hand, the pour-over will is a type of testamentary will, sometimes formally called a Last Will and Testament. Like other testamentary wills, it directs the distribution of your assets at your death through probate. On the other hand, a living will states your wishes for end-of-life care. It is often executed as part of an estate plan, but it has nothing to do with your property.
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Suppose you set up an estate planning trust to distribute your hard-earned wealth to your three children. One child has proven irresponsible with money, so the trust doles out their share in small monthly disbursements. One child has had huge business success and told you they don’t need your money, so the trust effectively disinherits them. One child is collecting government disability benefits, so the trust has special provisions in place to control their inheritance so they don’t get disqualified. You worked hard with your estate planner and your financial planner to make sure all your assets are either already owned by the trust, or can transfer outside probate to the trust at your death.
But, in the the last year of your life, you bought something substantial and forgot to add it to your trust. Or, towards the end of your life, soon before your death, you received an inheritance or a large gift you were not expecting.
If you don’t have a pour-over will, all your careful estate plans will be sidetracked by this unaccounted for asset. This new property will get probated to your estate, and then your estate will get probated to your children as your lawful heirs. Your irresponsible child may then blow their portion, your wealthy child gets money they didn’t need, and your disabled child is kicked off their government benefits for having too high of an income.
If you have a pour-over will, it can step in to prevent this kind of unforeseen income from ruining your estate plan. If you did get an unexpected asset, your pour-over will takes over and governs the probate for your estate. And since your pour-over will gives everything to your trust, all those assets go to your trust, instead of going directly to your children. This way, his assets simply get added to the distribution plan in your trust. Your irresponsible child doesn’t get a lump sum windfall, your wealthy child doesn’t get more than they need, and your disabled child can continue collecting government benefits, all despite the sudden unplanned increase in the value of your estate.
The sudden inheritance is one contingency a pour-over will can guard against, but it really helps in all scenarios where you die without putting something in your trust. Maybe you accidentally missed a bank account when you were going over your assets with your financial planner. Maybe you closed on a new house deeded in your name the day before you died. Maybe your bank had a sudden staffing crisis and wasn’t able to process the transfer of an account to your trust in time. In all these scenarios, your pour-over will ensures the stray asset can still make it into your trust.
