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What is a Pour-Over Will?
If a Living Trust is part of your estate plan, you may also want to create a Pour-Over Will. Pour-Over Wills transfer any remaining property and assets to your Living Trust after your death, so nothing gets left out, or has to go through probate separately. Our Pour Over Will form allows you to appoint guardians for your children, like a standard Last Will and Testament.
A Pour-Over Will's primary function is exactly what it sounds. After your death, the Will pours, or transfers, any not previously transferred property into your Living Trust, so that all your property is distributed according to your Living Trust. Pour-Over Wills may distribute your personal property such as clothing, jewelry and furniture. It can be used to name a guardian for your minor children too.
This is a specialized Will that is used as a supplementary document to your Living Trust or Joint Living Trust and it should only be created if you have previously completed either of those. Get started on yours with Rocket Lawyer now – it’s as easy as answering a few questions!
When to use a Pour-Over Will:
- You have previously created a Living Trust or Joint Living Trust.
- You want to designate that assets should be distributed to the appropriate Living Trust.
- You want to designate a person to carry out the terms of the Pour-Over Will.
- You want to name a guardian to take care of your minor children.
Sample Pour-Over Will
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LAST WILL AND TESTAMENT
OF
I, , of , , revoke my former Wills and Codicils and declare this to be my Last Will and Testament.
ARTICLE
PAYMENT OF DEBTS AND EXPENSES
I direct that my just debts, funeral expenses, and expenses of last illness be first paid from my estate or trust assets.
ARTICLE
DISPOSITION OF PROPERTY
All of the property that I own at my death, or which shall become payable to my estate or my personal representatives, and any property that I have the power to dispose of under my Will shall be distributed to the Trustee of the to be administered and distributed as provided under that Trust.
ARTICLE
NOMINATION OF
I nominate , of , , to be the , and , of , , as Co-s (the ""), with bond. without bond or security. If one of the above nominees does not serve for any reason, the remaining nominee shall serve as sole , If one (or both) of the above nominees does not serve for any reason, I nominate , of , , as replacement Co- (or sole ), with bond. without bond or security.
ARTICLE
POWERS
My , in addition to other powers and authority granted by law or necessary or appropriate for proper administration, shall have the right and power to lease, sell, mortgage, or otherwise encumber any real or personal property that may be included in my estate, without order of court and without notice to anyone.
IN WITNESS WHEREOF, I have subscribed my name below, this _____ day of _________________, ______.
| Testator Signature: | ___________________________________ |
We, the undersigned, hereby certify that the above instrument, which consists of _____ pages, including the page(s) which contain the witness signatures, was signed in our sight and presence by (the "Testator"), who declared this instrument to be his/her Last Will and Testament and we, at the Testator's request and in the Testator's sight and presence, and in the sight and presence of each other, do hereby subscribe our names as witnesses on the date shown above.
| Witness Signature: | ___________________________________ |
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STATE OF
COUNTY OF
DISTRICT OF COLUMBIA
and| Witness Signature: | ________________________________________ |
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and and ,
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and , , and and and
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and by a witness who is personally known to me or who has produced ________________________________________ (type of identification) as identification,
| Witness Signature: | ________________________________________ |
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| Witness Signature: | ________________________________________ |
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and
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and
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and and
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Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Trust or Will. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Will is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.Vermont requires three witnesses. The signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Trust or Will. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Will is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.
About Pour-Over Wills
Learn about how to transfer assets to a living trust upon death
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Common terms in a Pour-Over Will
Making a Pour-Over Will with Rocket Lawyer is as simple as answering a few questions – we will build the document for you. You may, however, stumble upon some terms that might not be all that familiar to you. Here are some of them and what they mean:
Executor
An executor is the person or organization named in a Will who has the responsibility of carrying out the terms of the Will. Those responsibilities are to collect your assets, pay the debts and expenses of the estate, and distribute the remaining assets to the beneficiaries. Some states use the term “personal representative" rather than executor, but generally, either term is acceptable.
Guardian
A guardian is the person that you nominate in a Will to have custody of your minor children, if neither parent is available. The guardian has physical control over the minor children, including the responsibility to provide physical care, health care, education, and general welfare.
Alternate executor or guardian
It is recommended that you select an alternate executor and guardian who will serve if the first choice is unavailable or unwilling to serve. You may name an alternate to serve alone or name alternate co-executors or guardians to serve together.
Bonding
You may wish to require a bond on your executor. A bond is similar to an insurance policy in that it covers against losses from misappropriation of assets by the executor. These bonds are also known as fiduciary bonds. A fiduciary is a person or organization who is given the authority and responsibility over assets which are not owned by that fiduciary.
Waiving bonds
Some Will writers decide to waive (not require) a bond because the executor or trustee chosen is trusted, and because bonds are expensive and usually not necessary if a bank is the executor or trustee (most banks are already bonded). Bonds also require greater court involvement in some states because the court must ensure that the bond is handled properly.
You may wish to check with a lawyer regarding the usual practice in your state and the risks of not requiring a bond.
Informal administration
Some states have adopted laws which allow the executor to administer your estate with a minimal amount of court supervision, if the circumstances of the estate appear to be simple. States describe this method using various terms, such as "informal," "unsupervised," or "independent." Usually, if problems arise under these less formal methods, there are legal procedures available by which objecting parties can force the estate to revert to more formal methods.
By providing the executor with the discretion to use less formal methods (where available), you may be able to minimize unnecessary expense and delay in the administration of your estate. However, you must balance these potential savings against the increased possibility of errors or even intentional misconduct by the executor which could occur due to the reduced court oversight.
Witnesses
The Pour-Over Will should be signed by the Will writer in the presence of three disinterested adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason.
For example, a person should not be a witness if that person is a beneficiary under the Will. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the will is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.
If you have any more questions about your Pour-Over Will, do not hesitate to ask a lawyer.
Pour-Over Will FAQs
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How can I make a free Pour-Over Will online?
It is very simple to get what you need using a free Pour-Over Will template from Rocket Lawyer:
- Make the document - Answer a few basic questions and we will do the rest.
- Send and share it - Review it with an attorney.
- Sign it - Sign your Will and make it legal.
Any Pour Over Will sample from Rocket Lawyer can be modified for your unique scenario. To begin, tap or click on "Make document." Your Pour-Over Will will be built piece by piece as you are guided through entering the details.
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How is a Pour-Over Will different from a standard Will?
A Pour-Over Will is a specialized Will that is used as a supplementary document to a Living Trust or Joint Living Trust. A Living Trust can limit which assets go through probate, but if any assets were not transferred into the trust, a Pour-Over Will serves as a safety net to convey those assets into the Living Trust so that they can be distributed with the Will writer's other assets in the trust.
Essentially, instead of the usual Will provisions that provide for the distribution of specific bequests, tangible personal property, and the residuary estate, the Pour-Over Will simply distributes the Will writer's remaining assets to their Living Trust, which then distributes everything in accordance with the provisions of the Living Trust.
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What should I take into consideration when choosing an executor for my Pour-Over Will?
The executor's responsibilities are significant. Therefore, the person or entity should be trustworthy and capable of handling financial matters. A business background may be helpful, but certainly is not required.
If an individual will be selected as the executor, that person should be a resident of the same state as the Will writer since some states disqualify nonresident individuals.
If the executor will be working with a capable lawyer, the executor's responsibilities will be much easier to handle. Many banks have trust operations that provide executor services, but of course, the bank will charge for its services. Executor fees can range from 1-2 percent in some states to as much as 4-5 percent in other locations. Frequently, a spouse or adult child is named as an executor, and in such cases, the executor may waive or refuse to accept a fee for services.
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Can I name more than one executor in my Pour Over Will?
Yes, you can name any number of persons or organizations in order to have alternates in case your first or second choice is unwilling or unable to do so. Also, you can request more than one executor to serve together as co-executors. However, all actions taken by co-executors must be unanimous. Therefore, difficulties or delays are sometimes encountered if the co-executors reside some distance away from each other and documents to be signed must therefore be circulated among them, or the co-executors are unable to unanimously agree on some course of action.
On the other hand, there are also some advantages to naming co-executors. For example, a parent may name both of his children in order to avoid the perception that one child is being favored over the other.
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I have children. Can I use a Pour-Over Will to name a guardian for them?
Yes, you can name a guardian in your Pour-Over Will if you have minor children – this should be someone you trust to have custody in case something happens. The guardian has physical control over the minor children, including the responsibility to provide for their physical care, health care, education, and general welfare.
The responsibilities of the guardian do not include control of finances for the children. If your planning includes a children's trust, your trustee will have the responsibility to invest the assets of the trust and make payments to the guardian for the care of your children. If you want, you can choose the same person(s) to be the guardian and trustee.
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