Understanding Pour-Over Wills
May 2, 2023
Inflation is one of the most talked-about topics in the U.S. these days. The phenomenon has created a stronger desire in people to carry out estate planning, according to a survey by the site Caring.com. One out of every four Americans now says that inflation has awakened in them the need to engage in estate planning.
Estate planning, to most people, means penning a last will and testament to make sure your loved ones are taken care of when you’re gone. A will can certainly designate who gets what of your assets, but it must go through probate court proceedings, which can take months while your loved ones are left to their own devices, so to speak.
A better option is to create a living trust, a legal instrument that can not only designate your beneficiaries and their share of your assets, but can also avoid probate proceedings. This does not mean that you might not also need a will, however. A living trust does not allow you to designate a guardian for minor children, for instance, but a will does.
Another type of will is also important: a pour-over will. This is a legal instrument that assigns any asset you neglected to place in your living trust into that trust. Such assets must still go through probate, but being transferred to the trust makes the designation and distribution of all your assets complete and ironclad.
If you’re in or near Westerville, Ohio, and you need to start your estate planning or review and update what you have, contact The Law Office of David G. Bale. David Bale will take into consideration your personal goals and needs for the future of you and your loved ones and advise you of the best route to securing peace of mind for all. He can establish or revise all of the proper legal instruments, including trusts and wills, and certainly a pour-over will.
In addition to Westerville, The Law Office of David G. Bale also proudly serves clients in Worthington, New Albany, and throughout Delaware County and Franklin County.
What Is a Pour-Over Will?
It’s probably better to start answering this by discussing what a will in general is and what it entails. A last will and testament is a document that designates beneficiaries and what they will receive once the grantor of the will passes on. As mentioned, the will must go through probate court proceedings to make sure all debts, taxes, and obligations are met before beneficiaries receive their share. This can take months or longer and even involve additional legal expenses if there are challenges to the will.
An alternative to a will is a living trust, which does not have to go through probate, as mentioned above. Unlike a will that doesn’t become legally active until the grantor’s death, a living trust takes effect immediately. The settlor (creator) of the trust becomes the trustee of the estate, that is, all assets placed into the trust.
The settlor also designates a successor trustee to take over in case of incapacitation or death. If the settlor dies, then the successor trustee is charged with carrying out the wishes of the settlor as expressed in the trust, by turning over assets to those so designated, which can be done outside of probate court, in other words, almost immediately.
Now, if the settlor or original trustee accumulates assets after the creation of the trust, he or she can assign them to the trust, but if that option is neglected, then those assets would have to go through probate. A pour-over will is an instrument to facilitate the passage of those assets into the trust for distribution, but of course, the will must go through probate. Being transferred to the trust enables the successor trustee to distribute the assets as per the settlor’s original instructions.
What Happens if I Don’t Have a Will or Pour-Over Will?
If you die without a will, which is called dying intestate, then the probate court will distribute your assets according to Ohio state laws of intestate succession, usually starting with the surviving spouse and then the children. If you have assets outside of a will or even a pour-over will when you die, then the court is empowered to decide who gets what following intestate succession laws.
A pour-over will has only one beneficiary, the trust, and generally speaking, since the “forgotten” assets are usually fairly small, the estate may qualify for summary probate procedures, which are much more expedited than normal probate proceedings.
The Duties of the Successor Trustee
The successor trustee of the living trust will, even without going through probate proceedings, generally have to follow the same standards as exist in probate. He or she will have to honor all debts, pay taxes due, and then follow the desires of the settlor of the trust in distributing assets to beneficiaries. The process can be much faster than going through probate, which requires rounds and rounds of documents and accounting reports that must be submitted to the probate court.
Seek Trusted Legal Counsel
For all your estate planning needs, including trusts, wills, and pour-over wills, in or around Westerville, Ohio, contact The Law Office of David G. Bale. Establishing trusts and wills is not a do-it-yourself proposition, especially if you want all your assets, forgotten or otherwise, to be included in your trust. Rely on David Bale to cover all the legal bases for you and help you and your loved ones move forward in life with ultimate peace of mind.