If you don’t like paperwork, estate planning can be tedious.
At the most basic level, you must write a will detailing which assets are going to which people or entities. If you want to have more control over what will happen after your pass away (or beforehand, if you become mentally incapacitated), you need to create even more documents: trusts, advanced health care directives, and so on.
When writing each of these documents, plan carefully. Inconsistencies can call into question which document has power over the others, which can make probate (typically an already-complicated process for your loved ones) even longer.
How do you get your estate planning documents to work together to make for a smooth transition through probate, or minimize the amount of your estate that goes through probate in the first place?
One recommended strategy is writing a “pour-over” will.
Writing a pour-over will allows you to “pour over” your assets into another document (in most cases, a revocable living trust). In other words, all of the property that passes through your will is eventually transferred over to your trust. Once it enters the trust, it will be distributed to the beneficiaries of that trust.
What Are the Benefits of a Pour-Over Will?
There are three main reasons why a pour-over will is a good idea for a smooth transition of assets after your death:
- It Simplifies Your Estate Plan: Even though a pour-over will is a separate document from a revocable living trust, this kind of will ultimately covers your assets with one document (the trust). The power is given to your executor and your trustee, and most times, pour-over wills make their job easier.
- It Ties Up Any Loose Ends: A pour-over will is not so simple that it dumps every piece of property and every dollar you have at the time of your death into your revocable living trust. But if you leave the remaining assets that you have not specifically addressed in your estate planning documents to your trust, there will be no questions about newly-obtained or forgotten assets and where they go.
While it is important to update your will and estate planning documents regularly throughout your life, a pour-over will gives you a bit of a safety net if you cannot update your will later in life, but still obtain assets.
- It Keeps Away Nosy Neighbors: Wills are public, but trusts are private. If you do not want someone, for any reason, to know where your assets are going or who is inheriting your estate, giving your assets away through trusts gives you that ability.
What about Probate?
One of the biggest advantages to creating a trust in the first place is the ability to avoid probate. Wouldn’t creating a will take away that advantage?
Yes, but only if you do not plan ahead. If you do not put assets into a trust ahead of time, and instead put everything into your trust through your pour-over will, then all of your assets may still have to endure the lengthy probate process before they are transferred to your trust and distributed appropriately.
As we mentioned earlier, pour-over wills are a great way to tie up loose ends. That doesn’t mean they should be the only part of your estate planning strategy.
Take the time now to transfer some, if not most, of your assets into revocable trusts or any other type of trust that is more appropriate. For a list of common, and possibly more appropriate trusts for your estate plan, read more here.
Anything that is already in a trust before your death will not have to be a part of your pour-over will, and will not have to go through the probate process at all.
Who Governs a Pour-Over Will?
Every will has a personal representative (also called an executor) to govern your pour-over will. The personal representative will not have as much to do if you write a pour-over will. They will simply transfer your assets into a trust. Most of the division of assets and inheritance will go to the successor trustee that is named in the trust.
Leave the important information about distributing assets to the trustee, rather than the executor. You can dictate when, how, and to whom all of your property is transferred.
Want to write a pour-over will? Need help putting assets into the right trusts for your loved ones? Contact a Florida probate attorney, and secure your family’s financial future after you pass away.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.