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Key Facts
- State level: A pour-over will directs probate property to a trust identified in the will.
- State level: The property governed by the will remains probate property before it reaches the trust.
- State level: State statutes determine how the recipient trust must be identified and documented.
- State level: California and Florida use different statutory timing and documentation language for devises to trustees.
A pour-over will is a will used with a trust. It directs covered probate property to the trustee so the property can become part of the trust and be administered under the trust terms.
The will and trust have separate jobs
The revocable living trust holds property transferred to it during life. The pour-over will addresses probate property directed to the trust at death. The ABA describes this as a will leaving probate assets to a preexisting inter vivos trust.
Because the transfer is made by a will, the property does not bypass probate merely because its destination is a trust. “Pour over” describes the destination after estate administration, not an automatic lifetime transfer.
State law supplies the validity rules
Different jurisdictions use different approaches to testamentary additions to trusts. California and Florida illustrate both the shared concept and the statutory differences.
California’s identified-trust rule
California Probate Code section 6300 permits a will to devise property to the trustee of a trust established or to be established by specified people. The will must identify the trust, and its terms must appear in a qualifying written instrument or specified predeceased person’s valid will.
For the separate written instrument, California permits execution before, concurrently with, or within 60 days after the will’s execution. The devise is not invalid merely because the trust is amendable or revocable or was amended after the will or after the testator’s death.
Unless the will says otherwise, the devised property becomes part of the recipient trust and is administered under its terms, including qualifying amendments. Unless the will provides otherwise, revocation or termination of the trust before the testator’s death causes the devise to lapse.
Florida’s written-instrument rule
Florida Statutes section 732.513 permits a devise to the trustee of a trust evidenced by a written instrument existing when the will is made or subscribed concurrently with it, if the will identifies the instrument. Florida also states that revocability or specified amendments do not by themselves invalidate the devise.
Under that Florida section, the devised property is disposed of under the trust instrument as previously or subsequently amended. Unless the will provides otherwise, it becomes part of the principal of the recipient trust.
A pour-over clause does not fund the trust during life
The ABA definition focuses on property not transferred to the trust during the settlor’s lifetime. The will supplies a death-time route for probate property; it does not itself retitle the property to the trustee while the testator is alive.
The trust must remain part of the analysis
A pour-over provision cannot be evaluated from the will’s label alone. The applicable statute, the will’s identification language, the trust instrument, its amendments, and its status at death determine whether and how the devise operates.
