In one of my other posts I briefly addressed the pour over will. A pour over will was the start of an interesting January 2015 DCA case where LLC property avoided probate (see my last two posts for more information on this.) These estate planning devices are becoming very common. Like anything in life pour over wills have pros and cons. Considering making a pour over will a part of your Florida Estate Plan? Have a relative in Palm Beach or Boca Raton that’s talking about it? Here are six pros and cons to a pour over will.
Lets start with the basics: what is a pour over will?
A pour-over will is used with a trust. Instead of you going through all of your property and naming specific people to take possession of them after you die, a pour-over will would transfer all of the property to your trust.
- As a result, your trustee would be responsible for distributing the property in the manner in which you outlined in your trust.
What are the pros of a pour over will?
- Simplicity: One annoying part of the administration of a will is deciding who gets what. A pour over will takes care of everything all at once by pouring into the trust and allowing the trustee to deal with these types of concerns. This also simplifies the process for the Personal Rep and the trustee to go through and take care of your estate.
- Private: Wills are public records which can be accessed by anyone who makes a request to view them. By contrast, a trust is private. If you want to keep the details of your asset distribution private, the trust can do this.
- One Stop Shop. Do you know how many probate cases start with someone forgetting about some important asset? Too many to count. There is a chance you will leave an asset out of your will, maybe because you got it after you executed the will and forgot a residual clause, maybe you just forgot it was there! Either way this cant happen with a trust as it is all encompassing.
Well that all sounds great! But what are the cons?
- Probate is still a thing. Although the pour-over will simplifies your estate planning, it does not help your executor and trustee avoid probate. Probate could take weeks or months to complete and during that time, your assets will have to sit in limbo.
- Disputes can get costly and it comes out of the trust’s funds. If someone decides to challenge the trust and will, your executor and trustee might have to engage in a legal battle over both the will and the establishment of the trust.
- Not recognized. Some states do not recognize the validity of pour-over wills. Although Florida does you may run into problems with ancillary probates in other States. It is always wise to consult an experienced probate attorney before making any decisions.