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  1. #1
    Join Date
    Apr 2020
    Posts
    12

    Question Do All Pour-Over Wills Have to Be Probated

    My question involves estate proceedings in the state of: New York

    Here are two excerpts form Estate Law Firms advertisements seen on the internet:
    A) "Pour-over wills are subject to probate, since the assets have not yet been transferred into the trust; all assets
    distributed by a will — whether they are directed to a beneficiary or into a trust — are subject to probate."
    B) "A Pour-Over Will transfers any assets left outside your Living Trust into it upon your death.
    With a Pour-Over Will you can avoid probate because you don't have any probate assets – everything is owned
    in your name as trustee in the living trust."
    Am I wrong to see a contradiction between the two statements? Do all pour-over wills have to be probated?

  2. #2
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Do All Pour-Over Wills Have to Be Probated

    Quote Quoting hukre
    View Post
    My question involves estate proceedings in the state of: New York

    Here are two excerpts form Estate Law Firms advertisements seen on the internet:
    A) "Pour-over wills are subject to probate, since the assets have not yet been transferred into the trust; all assets
    distributed by a will — whether they are directed to a beneficiary or into a trust — are subject to probate."
    B) "A Pour-Over Will transfers any assets left outside your Living Trust into it upon your death.
    With a Pour-Over Will you can avoid probate because you don't have any probate assets – everything is owned
    in your name as trustee in the living trust."
    Am I wrong to see a contradiction between the two statements? Do all pour-over wills have to be probated?
    First of all, the probate laws of each state vary, and the two different law firm sites you looked at may be in two different states, in which case both may be correct for their own state.

    However, in at least most states how it works is that if you have sufficient assets in your estate the estate will have to be probated. In some states small estates can largely be handled outside of probate. All a pour over will provision does is direct the estate to send all the probate assets to a trust. That trust is thus simply a beneficiary like anyone else. So if the estate is large enough to require probate then that typically must be done even when the will sends everything to a trust rather than individual beneficiaries. For that reason, if you are going to use a trust to avoid probate, you want fund the trust with as much of your assets before you die (or use some other method of avoiding probate for assets that are eligible, like using pay on death beneficiary designations for financial accounts). Then you have a pour over will set up to sweep up anything that you didn't happen to get to the trust before death. If you do it right, very little is left when you die that is not already in the trust or otherwise set up to pass outside probate. That keeps the probate estate small, simplifying things and allowing most of the assets to pass outside of probate.

  3. #3
    Join Date
    Jul 2018
    Posts
    2,730

    Default Re: Do All Pour-Over Wills Have to Be Probated

    Quote Quoting hukre
    View Post
    Am I wrong to see a contradiction between the two statements? Do all pour-over wills have to be probated?
    Not really, but you have to understand some of the phraseology used.

    Do all estates where the deceased has a pour-over will have to be probated? No. Do some estates where the deceased has a pour-over will have to be probated? Yes.

    Is a pour-over will part of an estate plan that may help avoid probate? Yes. However, it is the trust, not the pour-over will, that is really what helps avoid probate. If a trust has been created and most of your substantial assets placed in the trust while you are still alive, that's what may allow probate to be avoided.

  4. #4
    Join Date
    Sep 2010
    Posts
    19,891

    Default Re: Do All Pour-Over Wills Have to Be Probated

    If the assets are already titled to the trust, the pour-over provision of the will is meaningless. The pour-over is to allow property left in the estate to be transferred to the trust. As TM points out, if you're over the small estate limit (which is $30,000 in NY State). Note in NY, while the small estate is a streamlined process, it's still probate. Not only does the estate need to be small, but all the presumptive heirs need to agree to administrative handling.

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