Setting up a living trust is often a highly efficient method of maintaining control over your assets while preparing to pass them on to descendants.
However, you must take steps to prepare your assets for the trust. Transferring ownership of your property to your trust is one such step.
Ensuring that a trust officially owns all the assets you intend to pass down to heirs takes time and effort. Pour-over wills can help facilitate the transfer of assets and ensure that any assets you miss end up in your trust eventually.
At Massingill Attorneys and Counselors at Law, we understand the importance of effective estate planning.
When working with Massingill, an experienced Austin estate planning attorney will personally analyze your estate and determine the most effective method to distribute it to your heirs.
We offer straightforward flat-fee services and have the experience to handle all your estate planning needs. Contact Massingill today and schedule a consultation.
Pour-Over Wills in Texas
In Texas, pour-over wills are legal documents that help estate planners ensure that all a decedent’s assets end up in their trust. Ensuring a trust owns all assets is crucial because it allows the executor to transfer them to your heirs efficiently.
Pour-over wills work by dictating that all a decedent’s assets not already in their trust are automatically transferred to the trust when they die.
Once assets are within a trust, they can be managed appropriately for the decedent’s heirs. Pour-over wills follow the same rules as any other wills in Texas and must go through the Texas probate process. Working with an Austin estate planning attorney is critical to creating a valid and enforceable pour-over will.
Pour-Over Wills and Trusts
People often use pour-over wills and revocable trusts together to form a comprehensive estate plan.Creating a trust can help your assets avoid probate once you pass.
One downside of trusts is that you must transfer the ownership of all assets to the trust for the assets to be managed and distributed to heirs.
It is surprisingly easy to overlook substantial assets when estate planning. Further, many people fail to officially transfer assets into a trust before they pass.
Using a pour-over will, in conjunction with a trust, manages this downside. Though assets captured by the pour-over will do not avoid probate, they eventually end up in the hands of your trust.
Using these two estate planning tools in conjunction streamlines the estate administration process and helps facilitate the management of assets for heirs.
Advantages and Disadvantages of Pour-Over Wills
Using a pour-over will in conjunction with a trust has several advantages and disadvantages.
Advantages
The primary advantage of using a pour-over will is how simple the estate planning process can be. Instead of dictating who gets what within the will, you can have all your assets transferred to your trust and managed on behalf of your heirs.
Doing so simplifies writing your will and makes it easier for an estate executor to close out your estate.
Pour-over wills are also an effective method of capturing and distributing your entire estate. Most people fail to transfer every asset they own into their living trust.
Assets you miss will likely be allocated based on Texas’s intestate succession laws. The general nature of a pour-over will makes it so all your assets end up in the possession of your trust after they go through probate.
Another advantage of pour-over wills is that they provide more privacy than using a traditional will. The probate process is a matter of public record. Assets that go through probate are part of a court’s records and can be easily found by any member of the general public.
If your assets are distributed directly through probate, the public will have a detailed understanding of your estate.
Once a trust owns assets, they are no longer a matter of public record. Assets within a trust can be managed and distributed to heirs privately.
Disadvantages
The main disadvantage of using a pour-over will in conjunction with a living trust is that assets captured by the will must go through the standard probate process.
It is advantageous to transfer as many assets as possible into your living trust so they can avoid probate. A pour-over will should only capture the assets that slip through the cracks.
Pour-over wills also do not protect your assets from creditors or litigation. Individuals in professions with high litigation risk, such as doctors, often benefit from placing their assets in legal vehicles that offer protection. Irrevocable trusts are one such vehicle.
Assets captured by pour-over wills are subject to creditors and litigants as part of the normal probate process.
Requirements of Pour-Over Wills
In Texas, pour-over wills carry the same requirements as any other will to be legally recognized and enforceable. Only individuals of sound mind who are over 18, are or have been married, or are in the armed forces can make a will.
Further, every will must be in writing, signed by the testator or a person on the testator’s behalf, and attested by two or more witnesses. Typed and printed documents are considered “in writing.” Witnesses must be at least 14 years old.
How an Attorney from Massingill Can Help
A pour-over will is a specific legal tool that is only useful as part of a comprehensive estate plan. A skilled Austin estate planning attorney from Massingill can work closely with you to develop an effective plan for you.
We will help you understand whether you should use a pour-over will or other legal device to capture your estate planning needs best. Contact us today to get started.
Frequently Asked Questions
Do Pour-Over Wills Avoid Probate?
No. Assets captured by a pour-over will must go through the typical probate process. Once the probate process is completed, the assets are transferred into your trust to be managed for and distributed to your heirs.
Do I Need a Pour-Over Will If I Already Have a Trust?
Maybe. A pour-over will provides a safety net, so any assets you forget to transfer to your trust will eventually make it in. If you are confident that you do not have any assets you wish to be in your trust that are not already owned by it, you might not need one. However, a pour-over will can cheaply and effectively provide you peace of mind if you are not sure.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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