Pour-Over Wills in Florida
A pour-over will transfers all assets in your probate estate into a living trust after you die. A pour-over will is often used in conjunction with a revocable living trust.
What does a pour-over will do?
A pour-over will moves all assets from a probate estate into a trust. This is done by the personal representative of your estate. The assets are then in the trust and under the management of a trustee, not the management of a personal representative. This estate planning strategy is explicitly contemplated in section 732.513 of the Florida Statutes.
Why would someone use a pour-over will?
A pour-over will is a backup plan in case some assets are not placed into your living trust before you die.
Because probate can be such a frustrating process, many people—especially those who own real estate in multiple states—choose to use probate-avoidance tools like living trusts. Those people typically put all their estate planning wishes in the trust, not in a will. The point of this is to save your loved ones time, money, and frustration after your death. But doing this requires you to move almost everything into the trust. And what happens if you forget to move something into the trust? Well, that could be a problem. Now that asset is being left out the estate plan.
However, this problem is avoided with the pour-over will. The pour-over will moves all remaining assets into the trust so that nothing gets left behind. That way loved ones are not left dealing with some assets in trust and others still back in the probate estate.
Can a pour-over will transfer assets into a trust that was executed after the will?
No, a transfer from a pour-over will to a later-created inter vivos trust is not valid. This is established in section 732.513(1) of the Florida Statutes. If you execute a pour-over will on Tuesday and create the trust on Wednesday, the attempted transfer will be invalid and will result in a lapsed devise. Thus, it is important when creating a pour-over will to transfer only to trusts created prior to or contemporaneously with the execution of the will.
Can the trust be amendable or revocable when a pour-over will is used?
Yes, the transfer from a pour-over will is valid regardless of whether the trust can be amended or revoked. The transfer goes to the trust as it exists at the time of the testator’s death, including any changes made to the trust after will execution. This is established in section 732.513(2)(a) of the Florida Statutes. Thus, the trust may be modified but not created after the execution of the pour-over will.
What happens if the pour-over will transfers to an unfunded trust?
Generally, a trust needs to be funded with trust property (sometimes called the trust res) in order to be considered a valid trust. So, you might expect that a trust would have to have be funded at the time of will execution in order for the pour-over will to work. But this is not the case in Florida!
In Florida, pour-over transfers to unfunded trusts are valid if the trust’s sole purpose is to receive the pour-over transfer. This is found in section 732.513(2)(c) of the Florida Statutes. Similarly, life insurance proceeds and employee death benefits can be transferred at death to an unfunded trust. Thus, if someone was to challenge the validity of the trust on the grounds that there was no trust res prior to the pour-over transfer, that challenge would fail. The devise is valid, even though the trust was technically unfunded during the lifetime of the trust’s settlor.