A pour-over will is a

testamentary A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...

device wherein the writer of a will creates a

trust Trust often refers to: * Trust (social science), confidence in or dependence on a person or quality It may also refer to: Business and law * Trust law, a body of law under which one person holds property for the benefit of another * Trust (bus ...

, and decrees in the will that the

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

in his or her estate at the time of his or her death shall be distributed to the Trustee of the trust. Such device was always void at

English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

, because it was not deemed a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change. More recently, a number of

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...

s have recognized the validity of a pour-over will. In the jurisdictions in the U.S. which allow a pour-over will,

testator A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...

s do not usually put all of their assets into trusts for the reasons of

liquidity Liquidity is a concept in economics involving the convertibility of assets and obligations. It can include: * Market liquidity, the ease with which an asset can be sold * Accounting liquidity, the ability to meet cash obligations when due * Liq ...

, convenience, or simply because they did not get around to doing so before they died. A pour-over clause in a will gives probate property to a trustee of the testator's separate trust and must be validated either under

incorporation by reference In law, incorporation by reference is the act of including a second document within another document by only mentioning the second document. This act, if properly done, makes the entire second document a part of the main document. Incorporation by ...

by identifying the previously existing trust which the property will be poured into, or under the doctrine of acts of independent significance by referring to some act that has significance apart from disposing of probate assets, namely, the revocable living trust (''inter vivos'' trust). The testator's property is subject to probate until such time as the pour-over clause is applied, and the estate assets "pour" into the trust. The

trust instrument A trust instrument (also sometimes called a deed of trust, where executed by way of deed) is an instrument in writing executed by a settlor used to constitute a trust. Trust instruments are generally only used in relation to an ''inter vivos'' tr ...

must be either in existence at the time when the will with the pour-over clause is executed, or executed concurrently with the will to be a valid pour-over gift. However, the trust need not be funded ''inter vivos''. The pour-over clause protects property not previously placed in a trust by pouring it into the previously established trust through the vehicle of the will.

References

{{reflist Wills and trusts