Pour-Over Will Lawyer

Florida residents who are interested in living trusts may also want to consider the benefits of pour-over wills. When used in tandem, these two estate planning documents complement each other and create an effective strategy that can meet numerous goals. That being said, this approach is only appropriate in certain situations in Florida.

While internet research can provide more information about pour-over wills and other legal documents, a consultation with an estate planning lawyer offers more targeted guidance. If you’re wondering whether a pour-over will is right for you, an experienced estate planning attorney can provide guidance.

As top-tier estate planning lawyers in Florida, the Medley Law Firm is here to help. This article will explain everything you need to know about pour-over wills in Florida, including their unique advantages and disadvantages.

Searching for the best way to leave assets to your loved ones? Our law firm can help you craft a comprehensive estate plan to address every possible contingency. Ready to get started? Contact the Medley Law Firm to request a consultation.

In terms of estate planning tools, the pour-over will is relatively simple. In fact, it’s not even technically a will, but rather a clause within a last will and testament. This is why it is often called a “pour-over clause.” 

A pour-over will addresses a potential downfall of a living trust, or revocable living trust: Outstanding assets not yet placed within the trust at the time of the decedent’s passing. A pour-over will transfers these additional assets into the living trust when the decedent passes away, providing the trustee with more control of the complete family estate. 

A pour-over will gets its name from a theoretical vessel filled with water. The water represents assets, and the vessel represents a living trust. In the same way that a vessel cannot hold water beyond its capacity, a living trust cannot hold additional assets left behind by a decedent. A pour-over will funnels these additional assets back into the trust, ensuring that nothing spills out of control. 

For example, a Florida resident may place all of their wealth, including real estate, bank account funds, cryptocurrencies, and fine art, into a living trust. They may be quite ill at this stage of their life, and they may expect to pass away relatively quickly after making this change. This individual may then receive lucrative stock options while receiving treatment in a hospital, and the estate planner may not have time to transfer these stock options into the trust before passing away. 

Without a pour-over will, the distribution of assets may be uncertain. They would go through probate administration before being distributed—a potentially long and costly process for family members. Ultimately, if the decedent’s last will and testament does not specify what should happen to these valuable assets, they may be subject to the completely unpredictable process of intestate secession.

If this individual had a pour-over will, however, this would not be an issue. The pour-over clause in the decedent’s last will and testament would simply state that any outstanding assets should be transferred to the living trust upon their passing. The stock options would move into the trust, where they would be carefully managed by the trustee. 

Although all jurisdictions in the United States recognize the legality of pour-over wills, each state may approach this issue with slightly different rules, and Florida is no exception. Perhaps most notably, Florida does not recognize verbal wills, otherwise known as nuncupative wills.

For example, while on your deathbed, you might tell your family that you want your remaining assets transferred to a living trust at the time of your passing. Even if you do this with multiple witnesses, Florida state law will not recognize your dying wishes, forcing your family to go through the normal probate process when dealing with your additional assets. This highlights the need to create a valid, written pour-over will ahead of time with an experienced pour-over will lawyer. 

If you are considering a pour-over will, there are a few advantages and disadvantages to be aware of. You may want to discuss these pros and cons in consultation with an experienced pour-over will lawyer. 

The main disadvantage of a pour-over will is that these estate planning tools are rather pointless unless you already have a living trust. In addition, pour-over wills still need to go through the probate process, which can be time-consuming. As with all wills, these documents may face legal challenges in probate court. 

In addition, you might want to consider the cost associated with a pour-over will. Although a pour-over will is very simple, you will need to establish a living trust for this estate planning tool to function. Trusts can be expensive, and this might not be the most appropriate choice for lower-income families. 

One key advantage of pour-over wills is their potential to prevent certain assets from going through the process of intestate secession. While most non-trust assets are subject to instructions from the last will and testament, assets included in pour-over wills are not.

Some people with living trusts provide virtually no instructions regarding assets in their wills. With no instructions regarding assets outside the trust, the probate court will have no choice but to follow the process of intestate secession. In other words, family members (usually spouses and children) will receive these assets, which may not have been the decedent’s wishes. 

A trustee cannot control what happens to assets outside of the trust, and pour-over wills bring these assets back under proper oversight and offers a much-needed safety net. Most estate planners agree that they would much rather have their trustees control their assets than the probate courts in Florida. While decedents can feel confident about their assets after selecting a fitting trustee, there is always a degree of unpredictability associated with probate proceedings in Florida. 

Pour-over wills also offer the potential for more effective tax planning. Some of the most effective estate tax mitigation strategies revolve around trusts, and any assets left outside of a living trust at the time of passing could be taxed at a higher rate. However, this is only an issue for high-net-worth families. Florida does not have estate or inheritance taxes, and federal estate taxes only apply to estates with values approaching $13 million. 

Another potential benefit of a pour-over will is increased privacy. You do not need to go into specifics when describing your outstanding assets in this estate planning document. Instead, you can simply say that everything should be moved into the trust. Remember, wills (unlike trusts) go on public record. With their vague description of your assets, pour-over wills can prevent people from finding out too much about the family fortune. 

Pour-over wills may be particularly effective for those with unpredictable health prognoses, especially if they have active investment portfolios or extensive business investments. These assets can add considerable value to an individual’s portfolio, even within the last few weeks of their life.

A normal will details all of the assets in your estate and identifies beneficiaries who should inherit them. In contrast, a pour-over will only pertains to the leftover assets that haven’t already been placed in your living trust. These “residual assets” should be relatively minor, and a pour-over will only supplement a living trust. On the other hand, a normal will can stand alone as your primary estate planning document. While a pour-over will requires a living trust to function properly, no additional documents are necessary if you draft a standard will. 

Considering a pour-over will? Speak to an experienced estate planning lawyer for legal advice on this type of will and whether it’s right for you. In the meantime, check out the answers to some of our most frequently asked questions.

• Who needs a pour-over will?

Anyone with a living trust (or irrevocable trust) should consider a pour-over will, as the two estate planning documents complement one another. 

• What does a pour-over will do?

A pour-over will complements a living trust by ensuring that there are no outstanding assets left outside of the trust document at the time of the decedent’s passing. These additional assets are simply transferred into the trust as per the instructions of the pour-over will. 

• What are the benefits of a pour-over will?

A pour-over will has the potential to help trust beneficiaries mitigate the costly and time-consuming probate process. It may even help beneficiaries avoid the completely unpredictable process of intestate secession. Most importantly, it ensures that a living trust contains all assets at the time of the decedent’s passing. 

While a pour-over will certainly offers considerable advantages, estate planning is a highly personalized process, and this document may not be the most appropriate choice for all Florida residents. To determine whether or not a pour-over will meets your unique needs and priorities, reach out to the Medley Law Firm to schedule a consultation.