What is a Pour-over Will in The Context of a Living Trust in Virginia

A living trust is an estate planning document enabling you to manage your assets during your lifetime then distribute your remaining assets upon your death, without the need for court involvement.

A living trust technically owns any asset you put into it. And if that trust is a revocable living trust, you are permitted to transfer assets in and out of the trust during your lifetime, effectively maintaining control over your assets.

One of the most significant advantages of a living trust is greater control over how your assets are distributed after death. A trust can control how distributions are made to an heir who is incapacitated, financially irresponsible, incapacitated, disabled, vulnerable to being taken advantage of, or a minor.

In addition, a trust can protect your heirs from losing their inheritance to lawsuits, creditors, business failures, and divorce. This is protection heirs do not get when they inherit assets directly through a Will.

Pour-over Wills & Living Trusts

A pour-over Will is an estate planning document commonly used alongside a living trust. Pour-over Wills ensure that all the assets in a person’s estate become part of their living trust when they die.

Here is how it works:

When setting up a living trust, you will put most, if not all, of your assets into the trust by retitling them with the trust as the owner. This is called funding the trust.

But as time goes by, and you gather more assets, there is a chance that some of your assets will not make it into your trust before your death. This is where a pour-over Will comes into play.

You make a pour-over Will while you are alive. Then, upon your death, your pour-over Will transfers any remaining assets into your living trust that you have not already transferred. That’s why we commonly call the pour over will a “safety net” that ensures that your estate passes to your intended beneficiaries as planned for in your living trust.

Pour-over Will Advantages & Disadvantages

The primary advantage of a pour-over Will is that you can enable any assets you did not transfer to your living trust before your death to be distributed by your trust. Your pour-over Will can also name guardians for your minor children and act as a backup in case your trust is invalid or nonexistent at the time of your death.

The main disadvantage of a pour-over Will is that (like all Wills) it must be probated. Therefore, any assets passing through your pour-over Will may get held up in probate before they can be distributed through your trust.

Probate is the legal process used to wind up a person’s legal and financial affairs after they die. Probate can be time-consuming and expensive, and because everything that is filed with the probate court is a matter of public record, probate can expose your estate to public scrutiny.

However, if you transfer most of your property into your living trust before your death, then that property will avoid probate and be distributed quickly and confidentially through your trust. Thus, a pour-over Will should only be thought of as a safety net for your assets.

Consult with an Experienced Virginia Estate Planning Attorney

Contact our law firm today at (703) 553-2577 or use the contact form to learn more about pour-over Wills in Virginia, or to discuss the advantages and disadvantages of a pour-over Will for your estate plan. We offer a free consultation and will be happy to discuss all of your Virginia estate planning needs.

The information on this site is for general informational purposes only. The information presented in this site is not legal advice or a legal opinion. You should seek the advice of legal counsel of your choice before acting upon any of the information in this site.