A pour-over will is one that serves as a catch all. It captures all assets that are not included or transferred into a living trust. For a living trust to work, it must be funded. This requires the testator to transfer assets from their estate into the living trust. The process of funding a trust is complicated; and there are instances where assets never make it to the trust. Therefore, a pour-over will may protect those assets that were delayed.
Revocable Trusts: Are They All a Testator Needs?
Testators may use living trusts to avoid probate court. Living trusts are referred to as revocable trusts, and their sole purpose is to pass assets on to beneficiaries of the estate. A living trust is a separate entity from the testator. It will have its own assets and these assets are not the same as those that are still owned by the deceased.
For personal assets to be associated with the trust, they must be transferred into that trust. This means that the testator no longer owns them upon transfer. If an asset does not transfer into the revocable trust, it remains the testator’s personal asset.
When Does a Pour-Over Will Make Sense?
If there are assets outstanding, a testator may benefit from using a pour-over will. It is best for an individual to consult an attorney that offers estate planning in San Diego to see if their trust needs the protection of a pour-over will.
Even if assets are not transferred to the trust, they remain in the testator’s estate. However, those assets that did not transfer are subject to probate. Therefore, when a testator does not create a pour-over will, the assets are treated “intestate” and considered “without a will.” The beneficiaries that receive these assets could differ from those named in the revocable trust.
Pour-Over Wills and Probate Court
When an individual consults with an attorney for estate planning in San Diego, they must assess if their pour-over will forces assets into probate court. In some cases, a pour-over will’s assets are still subject to probate. Laws regarding asset value and pour-over wills vary; therefore, it is best for an individual to consult with an attorney and see how their assets are treated in probate.
Elements of a Good Pour-Over Will
- Consistency: The pour-over will should be created by the same attorney that did estate planning in San Diego to create the living trust. This ensures that both documents are consistent with one another and do not contradict legally.
- Naming the Trust and Tax Implications: An attorney must also assess if the trust will encounter taxes when it is named as the beneficiary in the pour-over will. In some cases, the assets are subject to taxation by the state and federal government.
- Personal Assets Only: The pour-over will only addresses personal assets not yet transferred into a living trust. So, the testator must ensure all personal assets are included prior to finalizing the pour-over will.
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