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Last Updated on October 29, 2022 by Estate Planning FAQ

A question commonly asked when preparing a “trust package” for a client. A “trust package” typically consists of a trust, a pour over will for each spouse or in the case of an individual for the individual, along with other advance directives and powers of attorney. There may be other supporting documents as well.

If There is a Trust, Why also is there a Will and Does it Have to Go Through Probate.

It is prudent in the preparation of an estate plan to prepare for the unforeseen consequences. As part of this, most, if not all, estate planning attorneys when they prepare a revocable trust also prepare a last will and testament. In the estate planning industry, this last will and testament is referred to a pour-over will. Its purpose is to “pour-over” into the Trust any assets that may be owned by the decedent the did not get transferred into the Trust during lifetime. This would also apply to any asset that did not have a beneficiary designation as well. The reasoning behind this is that if an asset has not been transferred into the Trust trust during the lifetime or lifetimes of the Grantors, it is subject to probate. Transferring assets into a trust or changing the asset beneficiary designation is referred to as funding a trust. For a more through discussion on funding a Trust, please see the following article. If this is necessary, instead of the property passing to an individual that is not your Trust, the “pour over Will” will make sure that the Trust receives the property.

Property Supposed to be Held By the Trust Will Not Happen If There is Not a Pour-over Will

Without a Will as a backup document, the property would then pass either to the Grantor’s heirs or others and this more than likely was not the intention of the Grantor in creating the Trust. In most estate plans, the individuals that receive the assets from the revocable trust are also the heirs at law and would receive the property through intestate succession. However, there are times in which the revocable trust would place limitations on when funds could be received; the manner in which funds may be received; limitations on age until the funds can be received, etc. If there were not the pour-over will as a backup document or contingency to make certain that the trust would be funded, these items could not be carried out.

Probating a Pour Over Will is not Very Common

In practice, it is not very often that a pour-over will has to be probated. It has been the author’s experience that in 24 years of practice (devoted to a substantial amount of time to estate planning) less than 10 pour-over Wills have had to be admitted to probate. It is generally understood and when the effort is being made to put together an estate plan with a revocable trust that the additional efforts are taken to make certain that the trust either owns the property and therefore it’s title has been transferred into it’s name or the trust is listed as the beneficiary, i.e. “funding the trust”. In practice, the Trust is typically the owner of property such as real estate and possibly investment accounts that are not considered a qualified account. Qualified accounts are such accounts as Individual Retirement Accounts (IRAs), 401(k), TSA, 403(b), along with others. These are accounts in which the funds have been transferred in pre-tax. As such, at the time of their withdrawal, income tax will have to be paid. The Trust is typically the beneficiary or secondary beneficiary of checking accounts, savings accounts, qualified accounts, etc. Life insurance is also typically owned by an individual but the trust is listed as the primary or contingent beneficiary.

In summary, although more than likely it would never be probated, it is very common and potentially could be considered malpractice to not prepare a pour-over will to further provide protection in the event of death and a revocable trust has not been listed as the owner or beneficiary of an account that the Will would be probated to then transfer the asset into Trust.