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A pour-over will ensures that any assets that were not put into the trust during the grantor's lifetime are transferred into the trust upon their death. In addition, when a trust is created, the grantor will generally transfer their assets into the trust so that they can be handled and distributed according to their desires. Nevertheless, there may be certain assets that the grantor overlooks to transfer into the trust, or they may receive new assets after the trust has been made. A pour-over will guarantee that these assets are still allocated according to the terms of the trust.
How a Pour-Over Will Works
A pour-over will serves the purpose of transferring any assets not included in a trust during the grantor's lifetime to the trust after their death. This legal document designates the trust as the beneficiary of these assets, ensuring that they are managed and distributed according to the grantor's wishes by the trustee.
One of the main advantages of a pour-over will is that it avoids probate, a costly and lengthy legal process that oversees the distribution of assets not included in a trust. In addition, transferring these assets to the trust protects them from the probate process and can be distributed more efficiently. Including a pour-over will in the estate plan is essential to ensure all assets are included in the trust and managed as intended.
How to Create a Pour-Over Will
It is crucial to plan your family's future by creating a pour-over-will agreement. The following are the steps to create a pour-over-will.
- Choose the Will Type. In the United States, holographic and typed wills are two ways to draft a will. The original and at least two copies must be kept to be valid with a typed will. Notarization can also be an option, which involves an independent witness verifying your signature on the will.
- Include Legally Binding Text. After selecting the document type, fill in the specifics, such as choosing an executor or personal representative, deciding the level of control over your assets, and determining the probate exemption amount.
- Appoint a Guardian. As minors cannot make decisions regarding agreements, and they need a guardian to represent them and interpret estate planning documents.
- List Your Possessions. Provide details on each possession, including real estate, personal property, financial accounts, investments, valuables, and household goods. This information helps the executor decide which items to sell or liquidate after death.
- Divide Belongings. Determine who will receive each of your belongings, including money, property, and sentimental items.
- Decide on a Residuary Recipient. A residuary recipient receives all remaining items after other bequests have been made, but only if there aren't any other specific instructions for distribution written in the will or trust agreement.
- Select a Will Executor (if applicable). A will executor is legally responsible for transferring assets after someone has passed away, gathering all relevant documents and paperwork related to estate management duties.
Why Hire a Lawyer When Creating a Pour-Over Will
Below are the key areas a lawyer can assist you in creating a pour-over will.
- Offers Legal Counsel on the Content of Your Will: A lawyer can guide the essential components of your will or trust, including the specific amount of money you wish to allocate to a particular individual or organization, and help you present this information properly format.
- Assists with the Completion of all Required Documentation: In addition to your estate plans, your lawyer can help you complete other relevant forms that may be necessary for your state, such as a health care proxy or a durable power of attorney.
- Ensures Proper Filing of Your Documents: Once your estate planning papers have been finalized, they must be properly submitted to the county clerk's office and recorded with the court system to be legally binding against possible challenges by others who may object to their terms or intentions.
- Prevents Fraudulent Claims by Confirming all Legal Requirements Have Been Met: To ensure your trust or will agreement is sound and legally binding in your state, a lawyer can assist you in ensuring all legal conditions have been met, such as verifying that the beneficiary named in your agreement is real, legally capable, and aware of their inheritance.
Important Tips When Drafting a Pour-Over Will
Drafting a will or trust agreement can be a daunting task. To help make the process smoother, consider the following tips:
- Simplicity is Key: Ensure that your will or trust agreement is straightforward. Avoid including unnecessary information and keep the document concise. Optional personal details can be added if they relate to asset distribution.
- Be Specific: Include the names and ages of all beneficiaries and any requirements that must be met before they can inherit, such as a minimum age.
- Avoid Ambiguity: Ensure that the document leaves no room for interpretation. Make it clear what should happen if a beneficiary dies before receiving their inheritance or someone else inherits before the primary beneficiary.
- Use Plain Language: Avoid using legal jargon as much as possible. It's important that anyone reading your document can understand it without having to research the meaning of specific terms or phrases.
- Consider Tax Implications: Consult an estate attorney if you have significant assets. They can help you determine the best way to distribute your assets and provide guidance on how taxes may impact your desired distribution methods.
- Seek Professional Advice: Don't hesitate to ask questions or seek advice from lawyers or accountants. Making a mistake could result in costly consequences, so it's important to get expert guidance when creating a trust or will agreement.
Key Terms for Pour-Over Wills
- Testator: An individual who makes a will.
- Estate Planning: The process of managing and organizing one's assets in preparation for their eventual distribution after death.
- Trust: A trust is a legal entity that holds and handles assets to benefit one or more inheritors. In the context of a pour-over will, the will transfers any assets not already in the trust to the trust.
- Pour-Over Provision: This is a clause in a will that directs any assets not already in the trust at the time of the testator's death to be "poured over" into the trust. It ensures that all assets are ultimately distributed according to the trust's provisions.
- Beneficiary: A person or entity benefits from a trust or a will.
- Probate: The legal process of settling a deceased person's estate, including distributing assets according to the will and paying any debts and taxes.
- Executor: The person named in a will to manage the distribution of the testator's assets after death.
Final Thoughts on Pour-Over Wills
A pour-over will is an important element of any estate plan that includes a revocable living trust. It ensures that any assets not placed in the trust during the grantor's lifetime will still be included at the time of the grantor's death. And by using a pour-over will, the grantor can avoid probate and ensure that their assets are distributed according to their wishes. So if you are considering creating an estate plan, it is important to speak with an estate planning attorney who can help you determine whether a pour-over will is appropriate for your situation.
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Meet some of our Pour-Over Will Lawyers
December 9, 2021
We are a boutique firm located in San Diego that handles civil litigation with a couple other areas of law.
December 11, 2021
Liz is an experienced insurance professional, having worked with carriers and brokers for over 10 years. She can review or draft a variety of commercial agreements and is here to help your business. Specialties include: Master Service Agreements, business process outsourcing, marketing and partnership agreements, broker agreements, business associate agreements, and NDAs.
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James Allen is a native of Birmingham, Alabama. Mr. Allen has a considerable amount of experience in the areas of domestic relations, criminal law, family law, and general civil litigation.
December 6, 2021
I am available to advise on entity formation, contracts, and employment policies. I am also comfortable litigating business disputes including partnership disputes and employment cases. Prior to opening my current practice, I worked for several years in a small civil litigation practice focused on employment matters and civil litigation. I attended law school at the University of Colorado, and I went to the University of British Columbia for my undergraduate education.
December 13, 2021
I have been a freelance attorney for several years and have many of my clients returning to me for continued work because of the quality I produce.
January 4, 2022
Amy Sue L.
Ms. Leavens is a corporate attorney with 10 years of experience as the General Counsel, Chief Compliance Officer and Corporate Secretary of a Congressionally chartered, non-profit corporation, and more than 20 years of experience as an advisor to executive officers and boards of directors in for-profit and non-profit organizations. She has substantial experience within in-house legal departments managing cross-functional teams comprised of multiple business units and attorneys on large-scale mission critical projects, and within a global law firm as a manager of public and private, domestic and international, multi-party business transactions. She has unique experience implementing government-sponsored business initiatives. Ms. Leavens was honored in 2015 as one of Washington, D.C.’s Top Corporate Counsel by Bisnow and the Association of Corporate Counsel; nominated in 2014 for the Association of Corporate Counsel (WMACCA) Outstanding Chief Legal Officer Award; and the recipient in 2014 of WMACCA’s Community Service Award.
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Most of my career has been as in-house counsel for technology companies. My responsibilities included managing all vendor/procurement contracts and compliance, customer/partner/reseller contracts and compliance, data security/privacy compliance and incident responses, HR/employment issues, and legal operations. I am very comfortable negotiating Commercial Contracts, Vendor Agreements, and Procurement Contracts for goods, services, and licensing, as well as addressing Employment & Labor, Intellectual Property, and Data Privacy issues and compliance. I specialized and have a certificate in IP in law school and continued to develop in that area as in-house counsel for Interactive Intelligence, Genesys, which are unified communication companies, and KAR Global in the automobile digital services lines of business.