Plan Attorneys in this area are most often asked, "If I have a trust do I need a will?" The answer is not absolutely, but if you understand that the trust will only distribute property actually and effectively transferred into the trust, you can understand the need for a will. A will would distribute everything in your estate that has not been transferred at your death. If this is a large amount of property, your heirs may be forced to open a Probate Court proceeding, despite your intention to dispose of your property by your trust and avoid probate.

For this reason a "Pour-over Will" is often drafted by Trustors forming a trust. This will provides that any property not in the trust should be transferred to the trust on your death and distributed in accordance with its terms. Whether this is effective to avoid probate depends upon your state law, and this area should be thoroughly researched before you can act with certainty. Again, this certainty is a reason for employing the services of an attorney and making sure that your Trust complies with the laws of your state, and performs in accordance with your wishes.

We have provided a sample "Pour-over Will" that you can open in another window for review.

One can see that it is substantially similar to a simple will set forth in the Wills section, except that it takes all of the property of the deceased and "pours it over" into the trust. After this "pour-over," the assets are distributed in compliance with the trust provisions. In this manner, and in the absence of other circumstances, there may be no need to open a probate estate and no need to engage in a lengthy process of probating the estate of the deceased.

Wills & Trusts

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