A poor over will should include the pour over provision, which directs any asset that is part of your probate estate to your trust but more generally, a pour over will contains your nomination of an executor and an alternate executor, in case the person is unable to act. It will include a provision regarding the waiver of bond. There will usually be an authorization for the executor to realize informal proceedings rather than having to go through probate, if there were assets outside of a trust. It also deals with cremation and burial instructions and normally it would have a no contest provision to prevent any new beneficiaries from contesting the will or the trust.
What is the Difference Between a Pour Over Will and a Living Will?
A will, generally, is what we call a last will and testament, where you are directing the disposition of your assets upon your demise. That is a will-based estate plan. The will is the center of the estate plan and it has those distribution provisions upon the death of a testator. The pour over will is merely a companion document to the revocable living trust. The living will doesn’t deal with financial assets at all, it is really the guidelines for cessation of life prolonging procedures. In a lot of states, they are doing away with the living will and now the advanced healthcare directive has taken its place.
What Are the Executor’s Duties When There is a Pour Over Will?
If most of the assets are titled in the name of the trust, a lot of the heavy lifting will fall to the named trustee of the trust. Normally, the trustee and the executor will be the same person. Under a pour over, usually the executor is going to file the final tax return and deal with any administrative matters. Maybe there are claim forms that need to be completed or submitted with a former employer or a union, so they complete those forms and do a letter of instruction having the assets transferred over to the trust. The executor would usually make the arrangements for cremation or burial, authorize the payment of expenses for a celebration of life or a memorial service, and clean up issues that need to be addressed.
What Are the Successor Trustee’s Duties?
A successor trustee’s duty is to notice the trust beneficiaries and the family members of the existence of a trust, of the fact that it is now irrevocable following the death of the grantor, and they have a duty to notify the various interested parties, such as TenCare or Medicaid, social security, and former employers. They have the duty to begin marshalling the assets, getting them ready for distribution, obtaining appraisals, and preparing accountings to go to the beneficiaries, informing them of the assets on hand at the time the testator passed away, or the income that was received throughout the accounting period and the disbursements that were made throughout the accounting period.
Also, the change in form of assets and which assets are available on hand at the end of the accounting period and available for distribution to the beneficiaries. Many times, we will have a plan of proposed distribution and send that out to the beneficiaries, and then they can agree to that plan of distribution or they can submit comments or questions or correct the errors that might be contained therein.
Does the Pour Over Will Need to Go Through Probate?
In an ideal situation, there wouldn’t be any probate with the pour over will. However, if the grantor or the testator had a number of assets without beneficiary designation and if the aggregate value of those assets exceeds $50,000, then they would need to probate those assets. We would have to prove the will in probate court to show that it was validly established and executed, and properly witnessed. Then, through that court process, we can get the assets moved into the trust.
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