Why Your Pour-Over Will Won’t Avoid Probate
You created a revocable trust to avoid probate. So why did your attorney also give you a Will?
That Will is a pour-over Will, designed to catch assets that are still in your individual name when you die and direct them into your trust. But there’s an important catch: those assets have to go through probate first.
In this episode, Jill explains how pour-over Wills actually work, why creating a trust and funding a trust are two very different things, and how the way you own each individual asset determines whether it will avoid probate.
The takeaway? If avoiding probate is your goal, don’t just ask, “Do I have a trust?” Ask, “What happens to each of my assets when I die?”
What You’ll Learn in This Episode
Why you may still need a Will even if you have a revocable trust. A pour-over Will acts as a backup for probate assets that never made it into your trust.
Why a pour-over Will doesn’t avoid probate. It can direct an asset into your trust, but the asset first needs to pass through the probate process.
The difference between creating and funding a trust. Signing a trust agreement creates the legal structure. Funding the trust means actually transferring assets into that structure.
How a bank account can avoid probate. Depending on your circumstances and goals, you might retitle an account into your revocable trust or name the trust as a payable-on-death or transfer-on-death beneficiary.
Why those options aren’t necessarily interchangeable. Having an account owned by your trust during your lifetime may make it easier for a successor trustee to manage it if you become incapacitated. A payable-on-death designation doesn’t take effect until death.
What makes something a probate asset. An asset owned in your individual name at death with no surviving joint owner, beneficiary designation, POD/TOD designation, or other built-in method of transfer is a probate asset that needs probate to reach its next owner.
Why I think of probate as a bridge. Probate gets an asset from its deceased owner to its next owner. Your pour-over Will can tell us where the asset should go after it crosses that bridge, but it doesn’t eliminate the bridge.
Why one forgotten asset doesn’t necessarily mean your trust plan failed. A pour-over Will exists because financial lives change. You may open a new account, switch banks, or simply overlook something after creating and funding your trust.
What could happen without a pour-over Will. If an asset is subject to probate and you don’t have a Will directing it into your trust, your state’s intestacy laws determine who receives it.
The question to ask about every asset you own: What happens to this asset when I die?
Resources & Links
Watch this episode on YouTube: https://youtu.be/oeXWOkYpjoQ
Tennessee estate planning services: https://www.deathreadiness.com/estate-planning-solution
Episode 19: Why You Need or Don’t Need a Trust: https://www.deathreadiness.com/podcast/episode-19-how-to-know-if-you-need-a-trust
Probate Infographic: https://www.deathreadiness.com/probate-infographic
Episode 38: Why You Need or Don’t Need a Will: https://www.deathreadiness.com/podcast/why-you-need-or-dont-need-a-will
Financial Power of Attorney podcasts:
Episode 17: How Powers of Attorney Work, When to Use Them, and When It’s Too Late to Get One: https://www.deathreadiness.com/podcast/episode-17-how-powers-of-attorney-work-when-to-use-them-and-when-its-too-late-to-get-one
Episode 68: Why Good Powers of Attorney Still Fail: https://www.deathreadiness.com/podcast/68
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
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