Comprehensive estate planning usually involves several documents. One important tool many people use in their estate plans is a pour-over will that complements a living trust. So, what is a pour-over will? Instead of giving property directly to beneficiaries through the will, the pour-over will directs that any assets not put in your trust “pour over” into the trust at your death. As a result, the terms of the trust ultimately determine what happens to the property.
The lawyers at the Law Office of Andrew M. Lamkin, P.C., help families on Long Island and throughout New York design effective estate plans. Our firm focuses exclusively on estate planning, elder law, estate administration, supplemental needs planning, and residential real estate. We personally handle every case, carefully examine your circumstances, and explain strategies in clear language so you and your family feel confident about the plan we build together.
What Is a Pour-Over Will?
A will typically provides instructions for which named beneficiaries should receive specific parts of a person’s property when they die. A pour-over will, however, moves assets into a living trust that holds most of your assets, and then the trustee distributes them according to its terms.
Specifically, the pour-over will’s instructions direct that any assets not already in your living trust during your lifetime be transferred into the trust at your death. The pour-over will acts as a safety net to catch property you did not move into the trust before death.
Without a pour-over will, property not moved into your trust could be subject to “intestate succession.” Intestacy laws apply when someone dies without a valid or complete will, which means New York law decides who inherits the property.
What Is a Living Trust?
A living trust is a legal arrangement you create during your lifetime that can own your property for you. You transfer assets such as real estate, bank accounts, or investments into it and appoint a trustee to manage those assets.
While you are alive, you typically act as your own trustee, managing the property within the trust and keeping control. When you die, a successor trustee you name steps in to manage trust assets according to the trust’s instructions, without needing probate.
How Does a Pour-Over Will Work?
Like a typical will, a pour-over will becomes effective upon your death. Then, your executor uses the probate process to transfer any property the will covers into the trust. Once transferred to the trust, the trustee follows your specific instructions about who receives the property, when they receive it, and under what conditions.
Probating a Pour-Over Will
When someone with a pour-over will dies, the executor named in the will (if willing and able to serve) files it with the court in the county where the person lived. The court then reviews the will to confirm its validity and formally appoints the executor. After that, the executor:
- Identifies and values the property that was not already in the trust,
- Pays any debts or taxes, and
- Transfers the remaining property into the trust.
The executor can then typically close the estate.
Combined with a Living Trust
A living trust and a pour-over will operate as partners in your estate plan. The trust controls property you intentionally transfer into it during your lifetime, while the pour-over will catches any property left outside the trust.
Once the executor moves assets into the trust, the trustee manages or distributes them according to the trust’s instructions. The living trust provides instructions for distributing your assets, while the pour-over will ensures no property slips through the cracks.
Benefits and Drawbacks of Pour-Over Wills
No estate planning tool is perfect. A pour-over will has significant benefits, but it also comes with limitations. Evaluating both sides helps you make an informed decision about whether this tool fits your needs.
Benefits of a Pour-Over Will
There are several advantages to including a pour-over will in your estate plan:
- Completeness—captures omitted assets;
- Consistency—ensures all property distributions follow the same terms set by the trust;
- Simplicity—moves everything into one plan; and
- Privacy—trustee manages and distributes assets, keeping details private.
These benefits often make pour-over wills a valuable addition to a New York estate plan.
Drawbacks of a Pour-Over Will
There are also limitations you should consider, particularly that pour-over wills still require probate. As a result, they can include the delays and added costs often associated with probate.
Frequently Asked Questions (FAQs)
Why would you want a pour-over will?
You would want a pour-over will because it acts as a backup, ensuring that any property you did not move into your trust is handled according to the terms of your estate plan.
What is the difference between a pour-over will and a regular will?
A regular will distributes property directly to beneficiaries, while a pour-over will transfers property into a trust for distribution under the trust’s terms.
What do you put in a pour-over will?
A pour-over will covers property you did not title in your trust, such as overlooked assets, newly acquired property, or items you forgot to transfer during life.
Does a pour-over will avoid probate?
Living trusts typically bypass probate, but does a pour-over will avoid probate? No. Assets that pass through the pour-over will must first go through probate before the executor transfers them into the trust. Only assets you already put in your living trust before your death avoid probate.
Planning Your Estate with Confidence
If you have questions about whether a pour-over will and living trust combination makes sense for your family, the Law Office of Andrew M. Lamkin, P.C. can help. We focus on elder law, estate planning, probate, and asset protection strategies in New York. Our team listens carefully to every client concern, explains your options, and personally handles every part of your case.
Estate planning is one of the most important gifts you can offer your loved ones. Reach out to the Law Office of Andrew M. Lamkin, P.C., today to schedule a consultation and begin building a comprehensive estate plan that gives you and your loved ones peace of mind.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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