What is a “Pour-Over” Will (or Devise)?
A VALID “POUR-OVER” WILL ADDS PROPERTY TO THE TESTATOR’S TRUST AT THE TIME OF DEATH
In California, a person can add property to a trust (or even create a trust) in his or her will. The term for this type of will (or provision in a will) is a “pour-over” because it “pours” the property out of the decedent’s estate into an existing trust (or a trust created in the decedent’s will).
Generally speaking, property added to a valid trust by means of a valid pour-over provision does not have to go through probate. However, probate is required if the pour-over provision attempts to transfer community property or spousal property assets to a trust. (This is true even if the trust exists, at that point, for the benefit of a surviving spouse.)
CAN A POUR-OVER WILL CONTAIN OTHER PROVISIONS?
Yes. The pour-over can (and often does) include the testator’s entire estate, or only some portions of the estate, and the will can contain other devises. However, only separate property subject to a proper pour-over provision will avoid probate. Other portions of the will may require probate proceedings, and if probate is required, the court may have jurisdiction over the will as a whole.
CAN A POUR-OVER WILL SIMULTANEOUSLY CREATE THE TRUST THE PROPERTY POURS INTO?
Yes – but a pour-over can be made into an existing trust also (and often, this is the case).
A pour-over will (or devise) must transfer the relevant property to a trust that meets all of the following requirements:
- the trust must be identifiable and specifically identified in the will (i.e., a specific trust identified by name)
- the trust must have written terms set forth in (a) the testator’s will, (b) a document (other than a will) executed before, at the same time as, or within 60 days after the will that pours property into the trust, or (c) the valid will of another person who died before the testator.
The trust into which a pour-over happens can be amended after the will is written, so long as the trust remains valid and in existence at the time the testator dies.
IS PROPERTY INCLUDED IN A POUR-OVER DEVISE ALREADY “IN” THE TRUST DURING THE TESTATOR’S LIFETIME?
Not unless the will specifically says so. If you want property to be part of a trust during your lifetime, you should consult a lawyer and ensure the assets have been placed into the trust, legally and definitively. Property subject to a pour-over provision or pour-over will does not become part of the trust until the testator dies (and then, only if the relevant provision operates properly and the trust is valid and in existence). For this reason, it is vitally important that you consult an experienced trust and estate lawyer, and ensure the relevant documents are drafted properly. Do not attempt to write legal documents, or modify them, on your own.
If you believe a trust document was not properly written, or that improper influence was exerted over the testator, the trustee, or the process, consult an experienced lawyer immediately for an evaluation of your legal rights–even if the people involved are still alive, and the will or trust is not yet in the administration phase.
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
