What is a pour-over Will?
A pour-over Will is a document used to transfer assets to the trustee of a revocable living trust. The assets which are "poured over" into the revocable living trust are then administered pursuant to the terms of the revocable living trust (along with the assets that were already held by the living trust).
A pour-over Will is deemed valid if:
(a) the trust is identified in the Testator's Will; and
(b) the terms of the trust are provided in:
(i) a written document that was signed (other than the Will) before, during, or within 60 days after the signing of the pour-over Will; or
(ii) the Will of someone else who died before the Testator.
The specific statutory provision related to the validity of a pour-over Will can be found in Probate Code Section 6300, which provides:
(a) A devise, the validity of which is determinable by the law of this state, may be made by a will to the trustee of a trust established or to be established by the testator, by the testator and some other person, or by some other person (including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator’s will and its terms are set forth in a written instrument (other than a will) executed before, concurrently with, or within 60 days after the execution of the testator’s will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size, or character of the trust property). The devise is not invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator.
(b) Unless the testator’s will provides otherwise, the property so devised (1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given and (2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator (regardless of whether made before or after the execution of the testator’s will).
(c) Unless otherwise provided in the will, a revocation or termination of the trust before the death of the testator causes the devise to lapse.
Often clients acquire assets after creating a trust and forget that those assets should be re-titled in the name of the trust. The pour-over Will, while it may not avoid probate, can be viewed as a back-up document to ensure that all of the client's assets pass in accordance with the provisions of his living trust.