What is a pour-over will?

A pour-over will is a particular type of will used in conjunction with a trust. This kind of will “pours” any property the deceased still owned at the time of death into the trust that the person set up during his or her life.

Some people intentionally choose not to put all their property into their trusts during their lifetimes. This may be to avoid inconvenience in dealing with certain kinds of property. For example, some states and insurance companies make it very difficult to buy, sell, or insure vehicles held in a trust. There may also be tax reasons for not transferring property to a trust. Subchapter S stock , for example, often does not fit well in a trust. The transfer of real estate from the individual to a trust may trigger a property tax re-assessment.

In other situations people sometimes forget to put newly acquired property into a trust on an on-going basis. For example, someone might acquire a rare book or a valuable work of art, but forget to transfer ownership to the trust.

If the person who intentionally or accidentally has left property out of the trust dies without a will, then the property that is not included in the trust, or transferred through some other estate planning device, will pass according to the state laws on what is called intestate succession (property inheritance when there is no will). This property will not pass according to the provisions of the trust, as the deceased probably wanted it to. To prevent the creation of an intestate estate, a pour-over will is created. It covers any property that was (intentionally or inadvertently) left out of the trust during the deceased’s life. By the terms of the pour-over will, all the property the deceased owned at death is “caught” and is “poured-over” into the existing trust. Though the property caught by a pour-over will has to go through probate, it will eventually be distributed according to the instructions of the deceased instead of being distributed under the state law.

Whenever a trust is used, it is essential to also have a pour-over will to catch your property which was not held by the trust or transferred in some other way.