Brewing trouble: does a pour over require probate?

When creating a last will and testament, many individuals opt for a pour-over will to manage their assets after their passing. However, a common question arises: does a pour-over will have to go through the probate process? This comprehensive blog post will delve into this topic and provide valuable insights into the probate process and its implications for pour-over wills.

What is a Pour Over Will?

A pour-over will is a testamentary document that directs the distribution of assets that are not held in a trust or joint ownership. It is often used in conjunction with a revocable living trust, which allows individuals to maintain control over their assets during their lifetime while ensuring their wishes are carried out after their death.

Understanding Probate

Probate is a legal process that involves the administration of a deceased person‘s estate. It includes the following steps:

• Filing the will: The executor or personal representative files the will with the appropriate probate court.
• Inventorying assets: The executor creates an inventory of all the deceased person’s assets, including their value.
• Paying debts: The executor uses the estate’s assets to pay off any outstanding debts, such as mortgages, loans, and taxes.
• Distributing assets: Once debts are paid, the executor distributes the remaining assets according to the instructions in the will.

Pour Over Wills and Probate

The purpose of a pour-over will is to transfer any assets that are not already held in a trust into the trust upon the individual’s death. This process is known as “pouring over” the assets.

Does a pour-over will have to be probated?

Generally, no. Assets that are held in a trust, including those transferred through a pour-over will, are not subject to probate. This is because trusts are considered separate legal entities and are not part of the deceased person‘s estate.

Exceptions to the Rule

There are a few exceptions to the general rule that pour-over wills do not require probate:

• Contested wills: If the pour-over will is contested, the probate court may need to intervene to determine its validity.
• Invalid trusts: If the trust into which the assets are being poured over is invalid, the assets may become part of the deceased person’s estate and subject to probate.
• Assets not transferred properly: If the assets were not properly transferred into the trust before the individual’s death, they may still be subject to probate.

Benefits of Avoiding Probate

Avoiding probate offers several benefits, including:

• Reduced costs: Probate can be a costly and time-consuming process. Pour-over wills help avoid these expenses.
• Privacy: Probate proceedings are public records, which can compromise the privacy of the deceased person’s financial affairs.
• Timeliness: Probate can take months or even years to complete, while assets held in a trust can be distributed more quickly.

Considerations for Using a Pour Over Will

While pour-over wills can be an effective estate planning tool, there are a few considerations to keep in mind:

• Trust setup: Ensure that the revocable living trust is properly established and funded before creating a pour-over will.
• Asset ownership: All assets that you want to transfer into the trust should be properly titled in the name of the trust.
• Legal counsel: It is advisable to seek legal guidance from an experienced attorney to ensure that your pour-over will is valid and effective.

Summary: Navigating Probate with Pour Over Wills

Understanding the interplay between pour-over wills and probate is crucial for effective estate planning. While pour-over wills generally avoid probate, it is important to be aware of the exceptions and consider the potential benefits and drawbacks of using this type of will. By working with an experienced attorney, individuals can ensure that their assets are distributed according to their wishes and that the probate process is minimized or avoided altogether.

Questions You May Have

Q: What happens to assets that are not included in a pour-over will?
A: Assets that are not included in a pour-over will or trust will be subject to probate and distributed according to state laws of intestacy.

Q: Can I contest a pour-over will?
A: Yes, pour-over wills can be contested on the same grounds as any other will, such as undue influence, fraud, or lack of capacity.

Q: What are the alternatives to a pour-over will?
A: Other estate planning tools that avoid probate include joint ownership, payable-on-death accounts, and revocable living trusts.