A pour-over will is like any other will except that it has one
beneficiary, a living trust. This type of will “pours” any property
owned by the testator at death into a trust he or she set up before
passing away. The assets will be subject to the distribution plan in the
trust and will receive the benefit of the trust’s tax reduction
provisions. Most estate planners today recommend this testamentary
structure – a combination of a living trust and a pour-over will – with
the primary objective being avoiding probate.
Pour-over wills were void at English common law because the testator
could change the disposition of the trust at any time and essentially
execute changes to the will without meeting any formal requirements.
Today, however, all U.S. jurisdictions recognize their validity, subject
to slightly varying rules. A pour-over clause can be validated either
by referencing a previously existing trust into which the property will
be poured, or under the doctrine of acts of independent significance by
referring to some act that has significance apart from disposing of
Dec 18th, 2014
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