A pour-over will is an essential tool for estate planning in Massachusetts. It serves as a safety net to transfer any property not included in a trust during the decedent’s lifetime into that trust upon death. A pour-over will is just like a traditional will. It names a personal representative, directs the distribution of assets after the testator’s death, and nominates a guardian for minor children. Additionally, it nominates a personal representative to manage the estate.
However, the main difference between a pour-over will and a traditional will is the residuary clause. The residuary clause refers to all left over assets in the estate that have not been specifically devised. In a traditional will, the residual estate typically transfers to the beneficiaries named in the will. In contrast, in a pour-over will, the residual estate passes to the identified trust.
Pour-Over Wills and Revocable Living Trusts
Without a pour-over will, any assets not included in the revocable living trust will be subject to the Massachusetts intestacy laws, rather than the trust’s instructions. Intestacy laws direct assets to individuals, not to a trust. A pour-over will directs these assets to the appropriate place. Essentially, the pour-over will acts as a catch-all mechanism, ensuring that all assets eventually end up in the trust and distributed according to the trust terms.
Conversely, you may want to keep certain assets out of the trust. Some assets may be difficult to re-title to the trust or may not be valuable enough to warrant the effort. For example, keeping a small checking account out of the trust might be more convenient. Additionally, adding a car or other vehicle to a trust can create liability issues and are typically omitted for that reason.
Requirements for a Massachusetts Pour-Over Will
The requirements for a pour-over will are similar to those for a traditional will. The testator must be of legal age and of sound mind, the will must be signed by the testator, notarized, and two disinterested witnesses must witness it. However, a pour-over will requires specific language to connect it to the trust with clear intent. Further, there must be enough information to identify the trust and trustee(s). In case the trust was invalidated for an unforeseen reason, there may be additional language in your pour-over will about distributing assets. For example, should the pour-over will incorporate the terms of your revocable living trust into it and now create a testamentary trust.
Conclusion
Estate planning is an ongoing process, and a pour-over will ensures that any assets not previously transferred into a revocable living trust are included in the estate plan. The pour-over will is an integral part of a trust-based estate plan to ensure that assets are distributed according to the testator’s wishes, rather than subject to the state’s intestacy laws. Contact our will, trust, and estate planning lawyers today if we can help you with your estate planning needs.
