Many times clients who have a Living Trust ask whether they also should also have a Last Will & Testament. After all, doesn’t the Trust do essentially everything without needing the Will? Most experienced estate planning lawyers would agree that the answer is a resounding “yes.” Even though you have a Trust, you should still have a Will–a special kind of Will often referred to as a “Pour-Over Will.”
A Living Trust, also sometimes called a Revocable Trust, provides a way to transfer assets from the person who owns them to his or her beneficiaries at the time of death. With a Trust, this transfer can be accomplished without having to open a probate–thereby saving on time and money. The Trust avoids probate because assets are titled into the Trust before the owner’s death. That way, upon death of the owner, the assets in the Trust can be transferred by the Trustee–no probate is required. So why have a Will?
When a Trust is set up, it should be funded, i.e. assets should be transferred into the name of the Trust. Essentially all assets–with a few notable exceptions like 401Ks and IRAs–should be titled into the Trust. The problem is, in some instances something gets overlooked. An asset is titled only in the name of the person, not in the Trust. That is where the Will comes in. The Will becomes the means to “pour-over” the asset into the Trust. Of course, that will require a probate of that asset but at least the Will provides a means to get the asset into the Trust.
Here’s an real life example. A woman dies with a Living Trust and essentially all assets are titled in the name of the Trust. Her house, her bank accounts, her non-IRA brokerage accounts, all are in the Trust. However, after her death, it is discovered that she owned some bonds that were only in her individual name. They had never been re-titlted into the name of the Trust. While all of the other assets avoided probate, a probate had to be opened to deal with those bonds. Because there was a Pour-Over Will, the bonds were ultimately transferred into the Trust and from there to the woman’s beneficiaires.
In a perfect world, there would be no need for a Pour-Over Will. However, because assets sometimes get overlooked, it is advisable to have a Pour-Over Will in place. Hopefully, it will never be needed but if it is, it can act as a “safety net” to get a missing asset into the Trust.