Pour-over will

Wills, trusts and estates

Part of the common law series

Wills

Legal history of wills Joint wills and mutual wills Will contract · Codicil Holographic will · Oral will

Sections Attestation clause Residuary clause Incorporation by reference

Contest Testamentary capacity Undue influence Insane delusion · Fraud

Property disposition Lapse and anti-lapse Ademption · Abatement Satisfaction of legacies Acts of independent significance Elective share · Pretermitted heir Wills and conflict of laws

Trusts

Express · Resulting Constructive

Common types Bare · Discretionary Accumulation and Maintenance Interest in possession Charitable · Purpose · Incentive

Other types Protective · Spendthrift Life insurance · Remainder Life interest Reversionary interest Testamentary Honorary · Asset-protection Special needs (Supplemental Needs)

Governing doctrines Pour-over will Cy-près doctrine Trusts and conflict of laws

Estate administration

Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Laughing heir · Advancement Disclaimer of interest · Inheritance tax

Related topics

Advance directive (Living will) Totten trust

Other common law areas

Contract · Tort · Property Criminal law · Evidence

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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 placed in the trust. Such device was always void at English common law, because it was not deemed as a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change.

More recently, however, a number of jurisdictions have recognized the validity of a pour-over will. In the jurisdictions in the U.S. which allows a pour-over will, testators do not usually put all of their assets into trusts for the reasons of liquidity, convenience, or simply because they did not get around to do so before they died. A pour-over clause in a will gives probate property to a trustee of the testator's separate trust and must be validated either under incorporation by reference by identifying the previously existing trust which the property will be poured into, or under the doctrine of acts of independent significance by referring to some act that has significance apart from disposing of probate assets, namely, the revocable living trust (inter vivos trust). The testator's property is subject to probate until such time as the pour-over clause is applied, and the estate assets "pour" into the trust. Although the trust instrument must be in existence at the time when the will with the pour-over clause is executed, the trust need not be funded inter vivos. The pour-over clause protects property not previously placed in a trust by pouring it into the previously established trust through the vehicle of the will.

External links

Look up pour-over will in Wiktionary, the free dictionary.