Unlike a testamentary trust Will, which creates a trust upon the death of the testator subsequent to probate, a pour-over will does not create a trust. The Trust associated with it is a living Trust, which the testator created either at the same time he wrote his Will, or at some time prior to writing the Will. The pour-over Will and the living Trust are connected. However, the living Trust itself is a valid document and can exist without the pour-over Will while the pour-over Will must be linked to a Trust in order to have a destination for the left-over assets and property.

This example illustrates the difference. Suppose you own a house, two cars, some jewelry, and $250,000 cash in bank accounts. You set up a living Trust (set up during your lifetime) for the benefit of your children, and you transfer your bank accounts into the Trust to be managed by your appointed trustee, possibly yourself. Your estate attorney helps you write a pour-over Will, and in your Will, you leave your house and cars to your children, but forget to mention the jewelry. After you die and your Will goes through probate, because of the pour-over provision in your Will, your jewelry will go into the living Trust, one of the beneficiaries of the Will, which, in turn, benefits your children.

If, instead of setting up a Trust during your lifetime, you make a testamentary trust Will, after your death and after probate, a Trust will be set up and the specific assets you indicated in your Will shall go into the Trust for the benefit of your trust beneficiaries. This Trust does not exist until you die.