What Is a Pour Over Will?

A pour over will is a short will that works alongside a living trust. It says, in effect, that anything still in the person's own name at death goes into their trust. It is the backup plan for the trust, not a replacement for it.

The short answer

A pour over will is a will that leaves whatever a person owns outside their living trust to the trustee of that trust, so it ends up under the trust's terms. The model rule, Uniform Probate Code section 2-511, allows a will to leave property to a trust this way, even when the trust can be changed or revoked, and state laws generally allow it too, with details that vary. The catch surprises many people: property that passes under the pour over will generally still goes through probate, the court process that settles an estate, before it reaches the trust.

How does a pour over will work?

People who create a revocable living trust, a trust they control and can change during life, commonly sign a pour over will at the same time. Here is the usual sequence:

1. The trust is created and funded. The person signs the trust and moves assets into it, such as retitling a home or a bank account in the trustee's name. Our guide on how to fund a living trust walks through this step.
2. The pour over will names the trust. The will identifies the trust and leaves the rest of the estate to its trustee.
3. Something gets left out. A new car, an account opened later, an inheritance, or a home that was never retitled stays in the person's own name.
4. The will is probated. After death, the will goes to the probate court, and a personal representative, sometimes called an executor, is appointed to settle the estate.
5. The assets pour over. The personal representative pays debts and transfers what is left to the trustee. From there, the successor trustee distributes it under the trust, the same as everything else. Read more about what a successor trustee does.

Does a pour over will go through probate?

Generally, yes. A pour over will is still a will, and a will only takes effect through probate. Maryland's statute spells this out: property passing under the legacy "passes directly from the personal representative to the trustee." The personal representative is a court appointed role, so the court is involved.

That is why the real work of avoiding probate happens while the person is alive, by funding the trust. The pour over will catches what slips through. If what is left outside the trust is small, a state's small estate procedure may apply instead of full probate; see small estate shortcuts.

Pour over will vs living trust: what each does

The two documents are designed as a pair. For a fuller comparison, see wills vs trusts.

Why have a pour over will if you already have a trust?

Three reasons come up again and again.

• A safety net. It is easy to leave an asset out of the trust. Without a pour over will, anything left outside the trust would pass under the state's intestacy law, the default inheritance rules for people who die without a will, which may not match the trust's plan.
• A guardian for minor children. A will is where parents nominate a guardian. Arizona's statute, for example, says "the parent of a minor may appoint by will a guardian of an unmarried minor."
• A personal representative. The will names the person who will handle probate if it is needed, rather than leaving that choice to the court.

How is a pour over will different from a standard will?

A standard will lists who receives what: the house to one child, a car to another, the rest divided among several people. A pour over will usually names one beneficiary for the rest of the estate: the trustee of the person's living trust. The detailed instructions live in the trust instead.

That has a practical upside. When the person later changes who inherits, they usually amend the trust, not the will. The uniform law behind these statutes, Uniform Probate Code section 2-511, says the gift is not invalid because the trust is amendable or revocable, or was amended after the will was signed.

A pour over will must still be signed like any other will, with the witnesses the state requires. Where state law allows, a self proving affidavit can spare the witnesses a trip to court later.

How the rules differ by state

The general rule comes from Uniform Probate Code section 2-511. Under it, the trust's written terms can be signed before, at the same time as, or after the will, and revoking or ending the trust before death causes the gift to it to lapse.

Rules differ by state. For example:

• Arizona (A.R.S. §14-2511) and Massachusetts (M.G.L. c. 190B §2-511) follow the uniform wording. The trust's written terms can be signed before, at the same time as, or after the will.
• Texas (Estates Code §254.001) uses similar language, including trusts signed before, with, or after the will.
• Maryland (Estates and Trusts §4-411) requires that the trust be "executed and in existence prior to or contemporaneously with the execution of the will."
• Ohio (Rev. Code §2107.63) requires a trust instrument signed "either before or on the same date of the execution of the will."

In each of these examples, revoking the trust entirely before death generally makes the gift to it fail, unless the will says otherwise.

State rules change and vary. The plan finder checks the rules for the reader's state, and state guides such as Maryland cover local details.

What a pour over will cannot do

• Avoid probate for the assets that pass under it.
• Keep those assets private, since a probated will generally becomes a court record.
• Control assets that pass by beneficiary designation, such as life insurance or a retirement account with a named beneficiary.
• Control property owned jointly with a right of survivorship, which passes to the surviving owner.
• Work without a trust. If the trust was entirely revoked before death, the gift to it generally lapses.
• Replace funding. It is a backup, not a substitute for moving assets into the trust.

How Inhira fits

The Complete Trust Plan builds a revocable living trust and a pour over will together, from attorney reviewed templates, along with a financial power of attorney and healthcare directive. Most people who do not need a trust only need a will, and the Free Will or Complete Will Plan covers that. See how the trust and will work together on our living trust page.