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If you have a trust-based plan in your estate, a pour-over will may be created. This type of will is used when you have a trust-based plan. During your life, you may neglect to put certain assets in the trust, or may be unfit or medically unable to do so. A pour-over will allows certain assets to go to the trust even if they weren’t transferred before a person’s demise.

How Does a Pour-Over Will Work?  

First, a trust must be created so that assets can be transferred without the need for probate. The grantor of the trust is then able to put assets into the trust upon its creation and at any time before the grantor’s demise. Assets in the trust can be distributed to beneficiaries after the grantor’s death. If assets are not in the trust, though, they may be distributed through a pour-over will.

The will covers any assets that the grantor did not fund into the trust before their demise. You can think of a pour-over will as a backup plan in case the grantor did not fund their trust or failed to transfer assets before their death. As an added benefit, this type of will also allows for additional legal protections, including:

  • If the trust is invalid, assets can still be distributed to beneficiaries
  • If the trust is underfunded, assets can still be distributed

Probate remains a concern even with this form of will in place because if the property isn’t funded before death, probate is still a requirement. Some estates can benefit from this type of will, while others may not. Determining if you need a pour-over will is something that you should discuss with an estate planning attorney.

Who Needs a Pour-Over Will?  

Probate is one of the key reasons to create a trust and a pour-over will. For example, let’s assume that you’re creating an estate plan for your child and grandchildren. You want to give them certain assets, and you don’t want the estate to go into multiple probate processes. If you have a trust that names your child as the trustee, then your child will be able to use the assets in the trust to pass to your grandchildren. The trustee, typically your child in this scenario, will manage the distribution of assets as per the terms of the trust. You may choose to attach one of these wills to two types of trusts:

  • Revocable trust: A revocable trust is one that you can change your mind about. You can add or remove assets, beneficiaries, and remain in control of the assets in the trust during your lifetime.
  • Irrevocable trust: An irrevocable trust is one that is set up with a beneficiary and the trustee. You are no longer in control of the assets in the trust once they’ve been transferred – the trustee is. This type of trust is used for long-term plans that involve larger estates.

What if you don’t have a pour-over will? What will happen to the assets in your estate? State law will determine how the property will pass to your heirs if you have a trust but no other means of estate planning to direct these assets, such as:

  • Pour-over will
  • Traditional will, mentioning the assets

Intestate succession laws in Texas outline how an estate’s assets will be distributed based on a variety of circumstances, including if there’s a:

  • Spouse
  • Child
  • Multiple children
  • Parents
  • Siblings
  • Etc.

What Happens If There’s a Surviving Spouse? 

A lot of estate plans are created by married couples. However, if the first spouse to pass away wants his or her estate to be controlled by the surviving spouse, then a trust will be created to make sure that the surviving spouse can have access to the assets in the estate. The remaining spouse can act as the trustee, allowing the surviving spouse to continue living in the home or using the other spouse’s vehicle during his/her lifetime. The assets may be transferred to the trust upon the first spouse’s death, but the surviving spouse can remain in control of the assets. When the remaining spouse dies, the successor trustee would then be able to manage and distribute the assets. Assets that remained in the surviving spouse’s name will transfer to the trust upon death if proper estate planning is in place.

Do I Need a Lawyer for A Pour-over Will? 

Working with an estate planning lawyer is recommended because your lawyer knows your state laws and can recommend a trust, pour-over will, and other forms of estate planning to protect your estate.

A Houston Pour-Over Will Attorney Here To Support You

Whenever you find yourself needing to reach out to our office, you can be sure you won’t need to wait for hours or days in order to get a response. Here at Stafford Law Firm, we pride ourselves on being easily accessible and on responding to all client inquiries as soon as possible.

The fact of the matter is, one day you will need to fall back on your estate plan. Whether it will simply be to pass on your family’s wealth after you pass, or something even more heartbreaking like needing a new guardian appointment for your children, having a thorough and customized plan in place will help make sure your family and your future are well taken care of. This plan could need to include a pour-over will, and you can rest easy knowing that an experienced Houston Pour-Over Will Attorney has your best interests at heart.

Reach out today for a free consultation.

Frequently Asked Questions

A pour-over will is a necessary document if someone has a trust that is not properly funded. A pour-over will is essentially a safety net to catch assets that may have inadvertently been left out of a trust.

In general, a pour-over will covers any assets that a person may have at the time of their death that were not included in a trust while they were alive.

A pour-over will is not exempt from the probate process. If your estate needs to go through probate, then any assets that pass through your pour-over will are also required to go through probate.