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How does a Pourover Will work with your Florida Estate Plan?

Posted by Mark James | Dec 20, 2023

What Are Pour-Over Wills?

To understand what constitutes a pour-over will, it is important to understand revocable living trusts. A living trust holds the assets of the trustor, or person creating the trust. A trustee is a person with the fiduciary responsibility of managing the assets in the trust for the benefit of the beneficiaries. Living trusts are revocable, and to be valid, they must be funded. In other words, they must actually hold assets. When the trustor passes away, there may be assets that have not yet been transferred into the living trust. That is where the pour-over will becomes relevant. 

A pour-over will is a type of will stating that any assets or property owned by the trustor at their death will transfer (or pour over) into the trust. The transfer is automatic, as the living trust and pour-over will were created prior to the death of the trustor. 

Who Needs a Pour-Over Will in Florida?

Anyone who wants all their assets to go into a living trust at the time of their death should consider a pour-over will. Even with the best-laid plans, life can be unpredictable, and one or more assets may not be transferred into the trust while the testator is alive. A pour-over will can be viewed as a safety net, catching all the assets that the testator did not transfer into the trust while they were living, and transferring them after they pass away. 

Motor vehicles are one asset that it is usually best to not include in a trust, for several reasons. First, in case there is an accident that leads to litigation, the details of the trust may be brought up in court. Also, many insurers will deny coverage for vehicles titled in the name of a trust.

There are other times when a testator simply forgot about an asset or was not aware of the asset. For example, they may have inherited the asset shortly before their death and had not yet been made aware of its existence. A pour-over will is able to move all of these assets into the trust. 

What is the Difference Between a Will and a Pour-Over Will?

A regular Last Will & Testament (“will”) is a way for a testator (the person creating the will) to leave final instructions on how they want their assets distributed. It is a way for them to name who they wish to receive their belongings after they are gone, as well as who they desire to have custody of their minor children. The testator appoints a personal representative (also known as an executor in some jurisdictions) to distribute the assets as directed by the will and according to the law. 

A pour-over will is a much simpler document whose purpose is to transfer any assets owned by the testator at the time of their death into the living trust. 

Probate and Pour-Over Wills in Florida

Probate is a court-supervised process wherein the decedent's estate is administered. It includes paying creditors and distributing assets. It can be a tedious, time-consuming process, which is also a public process. One of the reasons so many people choose to use living trusts in their estate planning is because of their ability to avoid probate. However, all wills, including pour-over wills, must go through the probate process. 

Depending on your circumstances, it may be a good idea to have a pour-over will in place if you want all your assets handled through a trust when you die. However, in most cases, it is best to still transfer most if not all assets into the trust while you are alive and have the pour-over will in place just in case it is needed. The reason is twofold: 

  1. Assets placed in a trust avoid probate while those that go through a pour-over will might not be able to avoid probate; and 
  2. A pour-over will can be challenged, creating costly and time-consuming litigation. 

Keep in mind though that some jurisdictions allow some assets (especially those that do not satisfy a certain threshold amount in terms of value) to avoid probate. In this situation, some people may transfer their larger assets into the trust, leaving out smaller assets that do not meet the threshold, thus, avoiding probate. For example, if your jurisdiction requires any estate with a total value of $100,000 to go through probate, but your assets outside the living trust do not exceed $100,000 in value, then these assets will not go through probate.

An estate planning attorney knows the laws and rules of your jurisdiction. At the Law Office of Mark Andrew James, we will help you determine if a pour-over will is necessary and, if so, what assets are best transferred into the living trust.

Do You Need an Estate Planning Lawyer for Pour-Over Wills in Florida?

A pour-over will is typically executed at the same time other estate planning documents are, such as a living trust. Because these legal documents must adhere to certain rules and legal standards to be valid, it is in your best interest to consult with an estate planning lawyer. An attorney experienced in this area can review your particular circumstances, and if a pour-over will is needed, can prepare it for you.

About the Author

Mark James

Admitted to The Florida Bar in 2006, Attorney Mark Andrew James applies his years of experience earned from successfully handling important and sensitive legal matters, both inside and outside the courtrooms of the State of Florida, to personally assist his clients in an approachable, down to earth and efficient manner. 

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At The Law Office of Mark Andrew James, we focus on matters involving Estate Planning, Wills, Trusts, Probate, Power of Attorney, Healthcare Directives, Living Will, Prenuptial and Postnuptial Agreements, Homestead Law, Bankruptcy, Elder Law, and Real Property. We are here to listen to you and help you navigate the legal system.

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