Never Work Without a Net: The Importance of a Pour Over Will
The revocable living trust is a method of planning for the distribution of your estate upon your passing. The Trust enables your assets to be distributed to your beneficiaries without being subject to probate. Once created, you transfer your assets into the Trust which you manage as trustee for your benefit until you are no longer able to do so. Upon your passing, a person nominated by you to take over the trust (known as a “successor trustee”) will administer the trust and distribute the assets to your beneficiaries as provided for in the Trust. So, if you have a trust, do you need a will?
Yes, because no one is perfect. What I mean is that if all of your assets have been properly transferred into your trust, then the will does not have to be filed with the Court and be subject to probate administration. However, the will is a “safety net” which provides that in the event there is an asset that hasn’t been transferred into the Trust at the time of your death (as discussed below, this could occur because of an oversight or circumstances), the asset would be distributed to the successor trustee and disposed of according to the terms of the Trust. As a result, these types of wills are commonly referred to as “pour over wills”. Because a pour over will is subject to the probate process, the best way to avoid probate is to properly ensure all of your assets have been transferred to your trust.
If you don’t have a pour over will, any assets outside the trust which don’t have beneficiary designations, would pass by intestate succession to your heirs. This generally is not be a bad outcome but will needlessly incur additional attorney’s fees for the probate and, more importantly, may not be consistent with your wishes. For example, let’s assume that you execute a trust which provides that upon your passing, your estate is to be distributed as follows: 50% to Child A, 25% to Child B, 25% to Child C and nothing to Child D. If you had acquired a vacation home ten years after creating the trust and forgotten to transfer the property into the Trust, a probate would be required and, in the absence of a pour over will, the property would be distributed so that each child (including Child D that was to receive no part of the Trust) would receive a 25% interest in the property!
In one recent case, I was contacted by a son who learned that his father was entitled to a inheritance from a predeceased relative. The father had executed a trust which disposed of all of his assets. However, the inheritance had not been received prior to his father’s passing and, as a result, was not a part of the Trust Estate. The son was required to open a probate for his father and probate his pour over will to arrange for the inheritance to be distributed to his father’s trust which had very specific instructions regarding the distributions to his children. Without the pour over will, the inheritance would have been distributed equally to the children which was not consistent with what was provided for in the Trust.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
