Pour-over will

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 estate at the time of his death shall be placed in the trust. Under the common law of England, such devices have always been void, because the testator does not create a binding trust of the property initially and can change the disposition of the trust at any time, and therefore could essentially execute changes to the will without meeting the formalities required for such acts. More recently, however, a number of jurisdictions (particularly certain states of the USA) have adopted the view that a pour-over will is a legitimate device, and have given them effect.

In U.S. states recognizing this concept, most people do not put all of their assets into trusts for reasons which may include liquidity, convenience, or simply because they did not get around to it 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 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.

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