What is a pour-over will?

A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of the trust.

Marissa: I have a question please, regarding a pour-over will and an empty trust. Would that be an automatic? Does that automatically pour over into the trust?

Attorney Tom Olsen: The answer is no, Marissa. When you have a living trust for the purpose of avoiding probate. In order to avoid probate, it requires two things. Number one you've got a living trust. Number two that trust owns your assets. If you pass away and you still have a $10,000 CD that's not owned by your will or your trust, it's still in your individual name, which it shouldn't be, but it just happens to be. That $10,000 CD is going through probate. It's going to be governed by your pour-over will which says, "Take that $10,000 and pour it over into my trust." There is nothing automatic about it. You're now into probate which you're trying to avoid.

If you do everything just right, you're not going to need your pour-over will. Does that makes sense to you? If you have an unfunded trust, it's empty, and everything is in your individual name and you have a pour-over will-- You've not solved any problems. You just wasted time and money.

Marissa: Okay, so what happens to the trust? Is that a legal document or it's just a will?

Attorney Tom Olsen: No. The trust is a legal document. It's just unfunded. It's an empty shell. It won't get funded until you passed away. All your assets will be poured over into your probate and your trust. In your trust there's a plan of distribution that talks about how your money's divided when you pass away.

Marissa: You would more or less have to probate it to get it into the trust?

Attorney Tom Olsen: Exactly. That's what you're trying to avoid using a living trust.

Marissa: Okay. I see. All right. Thanks so much.

Attorney Tom Olsen: Okay. Bye-bye.