Do I Need a Pour-Over Will If I Have a New York Living Trust?
A revocable living trust allows you to transfer assets to family members and other beneficiaries outside of the normal New York probate process. This is because assets placed in trust during your lifetime are not considered part of your probate estate, i.e., the property that passes under your will. That said, even if you have an established and fully funded revocable living trust, you still need what is called a pour-over will to complete your estate plan.
Why a Will Is Still Necessary
Some people mistakenly believe that having a trust completely eliminates the need for a will. This is simply not true. For one thing, there are some estate planning tasks you can only accomplish with a will. Say you have minor children and need to nominate a guardian to care for them if you and the other parent die. You can nominate such a guardian through a will but not a living trust.
Even if there are no young children to consider, however, a pour-over will is still needed simply because there are often assets a person owns that are not properly titled in their trust before death. For example, say you create a living trust and transfer your assets into it. But for some reason, you forgot to transfer title to your care to the trust. If you suddenly die, your car is still a probate asset.
This is where the pour-over will comes into play. The name comes from the fact that the will instructs the personal representative of your estate to transfer–or “pour over”–any probate assets to the successor trustee of your trust. It is effectively a backstop to ensure that all of your property is distributed according to the terms of your trust.
Without a pour-over will, these probate assets would pass according to the terms of New York law governing intestate estates. This means that any probate estate is distributed to your heirs-at-law. It can also take several months, even years, to fully administer such a probate estate depending on the size and complexity of the assets involved.
Keep in mind, you can appoint the same person to serve as both your successor trustee and personal representative under your will. This can greatly simplify the process of carrying out your pour-over will. But even if you decide to name different individuals to serve in these roles, the personal representative is still bound to transfer any probate assets to the trustee. Ultimately, your trust still governs the management and distribution of those assets.
Contact a Brooklyn Trusts Lawyer
Trusts are a flexible tool for estate planning. But it is critical to properly establish and structure these trusts to ensure they meet your long-term goals. Our Brooklyn trusts attorney can help. Contact Yeung & Associates, PLLC, today at 718-889-7568 to schedule a consultation. Our office speaks Mandarin & Cantonese in addition to English.