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Pour-Over Will in Florida: What is It and What Are the Benefits?


A pour-over Will can be an important addition to your estate plan.  In Florida, a pour-over Will transfers any probate assets into your Trust upon your death, hence the nickname “pour-over.”   The Will simply names the Trust as the beneficiary of your probate estate.  Your Trust then ensures that your assets will be distributed to your beneficiaries according to your wishes and outside the probate system.

How Does a Pour-Over Will Work?

After a testator’s death, the Personal Representative of an estate has a long list of duties and responsibilities.  One of those duties is to determine if there are any assets left in the testator’s individual name at the time of their death.  Although the testator may have also had a Trust, sometimes the testator fails to put all of their assets into their Trust before they die.  Because of this, it is important that you have a pour-over Will to capture in non-trust assets.

What Are the Benefits of a Pour-Over Will in Florida ?

Including a pour-over Will in your estate plans has many advantages:

  1. Unforeseen Probate Assets. There are circumstances where it would be impossible for you to transfer assets into your Trust before your death.  The most common scenario is if a wrongful death claim is brought on your behalf.  Only a Personal Representative can bring a wrongful death claim for an Estate, which would require a probate administration.  If the Personal Representative is successful in this type of claim, then any lawsuit proceeds are payable directly to your probate estate (not your Trust).  Therefore, it is important that you have a pour-over Will to then transfer those probate assets to your Trust at the close of the probate administration.
  2. Coordination. Having a pour-over Will helps ensure perfect coordination between the administration goals of your Probate and Trust estate.  In other words, you can appoint individuals that you know will work well together (or is the same person) if both a probate and trust administration is needed after your death.
  3. Your wishes are followed. A pour-over Will is created to ensure that any probate assets will be directed to your Trust.  If you do not create a pour-over Will and a probate administration is necessary, then the probate assets will be distributed to your “heirs at law” pursuant to state law, which may or may not be what you would have wanted.
  4. Back-up Insurance Policy.  A properly drafted pour-over Will often includes language that incorporates the terms of your trust.  If your trust is deemed invalid for any reason (i.e., it wasn’t signed properly), then your Will could essentially re-validate the Trust by its specific reference and incorporation of its terms into your Will.  Therefore, even if the Trust is considered invalid, your wishes could still be honored through your pour-over Will.  This is a great “insurance policy” for your Trust.

Although one of the many purposes of creating a Trust is to avoid probate, sometimes a probate administration is unavoidable.   Therefore, it is crucial you have a pour-over Will prepared at the same time as your Trust so you don’t fall into any of those unknown traps!

Having a pour-over Will is not necessary for everyone. You should consult with a St. Petersburg estate planning attorney to conduct a comprehensive analysis of your goals and determine what estate planning tools you need. Contact Legacy Protection Lawyers, LLP, to talk about your situation at 727-471-5868 today.


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