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Pour Over Will

A pour over will is an estate planning tool used to ensure the wishes you have documented in your trust agreement are followed even if something were to be defective.  A defect can occur if you were to forget to properly fund your trust, were to forget to title a new asset in the name of the trust, or if something were to go wrong with the trust itself that made it legally inoperative due to a failure of the document, or a change in the laws.

A pour over will operates to "catch" all of the assets you failed to place into the assets of the trust and have now fallen into your probate estate.  The will operates to catch these assets and "pour" them back "over" to the trust.  Thus, the reason for the name, "pour-over will".  While this legal mechanism may not operate to avoid probate court, it is a safety net put in place to ensure your trust agreement will operate the way you designed.  

A second safety devise placed in a pour over will is to incorporate the terms of a defective trust into the will.  This is done through an "incorporation by reference" which is a clause in the will that simply states that if the trust were to become defective, the terms of the trust are to be added, or incorporated, into the terms of the will so that the will would act according to those trust terms. This allows your ultimate plan to still be placed into action even though the trust is defective.

Finally, the pour over will should have its own disposition of your estate should the trust and the incorporation by reference be defective or inoperable.  This disposition plan will likely mirror the terms in the trust, but is placed in the will as added security to ensure your plan's terms are ultimately followed.  

Having a trusted attorney properly draft these documents is imperative to ensure your wishes are followed when the time comes.  Contact the Filippi Law Firm today to schedule a consultation.

 
 

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