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Kevin O'Flaherty

In this article, we answer the questions, “what is a pour-over will?” and “is a will necessary if I have a trust?”  Along the way, we will also answer: “what is a will?”, “what is probate?”, “is probate required if I have a will?”, “should I have a will if I have a revocable living trust?”, and “what is the difference between a pour-over will and a standard will?”

What is a Will?  

A will is a legal document whereby the will’s creator (the “testator”) can accomplish the following:

  • State his or her wishes as to how his or her assets will be distributed after death;
  • Name an executor to administer his or her estate, collect his or her assets, and distribute them to beneficiaries according to the terms of the will; and
  • Name a guardian for his or her minor children in the event of his or her death.

For more on this, check out our article: Illinois Wills Explained.

What is Probate?  

Probate is a legal case that is sometimes required when an individual passes away in order to distribute the assets of the deceased individual (the “decedent”) to the beneficiaries of his or her will and his or her heirs.

Is Probate Required if I Have a Will?

Many people believe that if you have a valid will, your estate is not required to go through probate.  However, this is a misconception.  Probate is required in Illinois if the decedent owned (1) at least $100,000.00 in assets outside of a trust or payable on death accounts or (2) any real estate (regardless of value) outside of a trust and that is not owned jointly with right of survivorship.  

A will does not allow your estate to avoid probate.  However, a properly funded revocable living trust does allow your estate to avoid probate.  For this reason, a trust rather than a will is the most common primary estate planning document for most people who own real estate or more than $100,000.00 in other assets.

Like a will, a revocable living trust allows its creator (the “grantor”) to direct how he or she would like his or her assets distributed upon death and to name a person who will be responsible for managing this process (the “trustee”). However, a trust has the added benefit of making probate unnecessary, allowing the trustee to distribute trust assets to beneficiaries or begin managing those assets for the beneficiaries’ benefit immediately upon the grantor’s death, without the need for a costly and time-consuming probate case.

Should I Have a Will if I Have a Revocable Living Trust?

We’ve established that trusts are often preferable than wills as a primary estate planning vehicle. However, even if you have a revocable living trust, there may still be a role for a will in your estate plan.  

The one thing that a will can accomplish that a trust cannot is to allow its creator to name guardians for minor children.  This is often the most important part of an estate plan.  

Another consideration is that trusts only work to avoid probate if they are properly funded.  This means that the grantor must ensure that when he or she passes, he or she owns less than $100,000.00 outside of the trust and no real estate outside of the trust.  If the grantor makes a mistake in funding the trust, probate may be triggered.  

In this case, all of the assets that have actually been transferred to the trust can still be distributed and managed immediately outside of the probate estate.  However, any assets outside of the trust or payable on death accounts will have to go through the probate process.  

In the absence of a will, the decedent’s trust cannot control how assets that go through probate will be distributed.  Instead, Illinois’ intestate statute will determine how the decedent’s assets will be distributed.  In addition, the decedent will not have control over who manages those assets until they are distributed to beneficiaries.  

This is often not a concern for nuclear families who simply want their assets to pass to their children.  In these cases, the intestate statute will coincide with the decedent’s wishes.  For people in these situations without minor children, a will is not necessary in addition to a trust.

However, we usually recommend having a will in addition to a trust if:

  • Your wishes for asset distribution are different from the distribution rules laid forth in the intestate statute,
  • You are afraid that the wrong person will gain control of your assets (such as an ex-spouse gaining control of assets intended for minor children), or
  • You have minor children who will need a guardian in your absence.

If you have a will in addition to your trust and probate becomes necessary, the will will allow your wishes to be effectuated with respect to any assets that go through probate.  When your primary estate planning vehicle is a trust, your attorney will generally use a “pour-over will” rather than a “standard will” to accomplish these purposes.  

What is the Difference Between a Pour-Over Will and a Standard Will?    

A “pour-over will” is the type of will that we generally create for someone who is using a revocable living trust as his or her primary estate planning vehicle.  

Pour-over wills are very similar to standard wills.  Like a standard will, a pour-over will allows you to name a guardian for minor children as well as an executor to manage your probate estate if one is required.  

However, unlike a standard will, a pour-over will does not direct how you would like your assets to be distributed.  Instead, the pour-over will references your trust and states that you would like your wishes as stated in your trust to control the distribution of assets in your probate estate.  This is beneficial, because if your wishes change, you will only have to update your trust, rather than both your trust and your will.  

The pour-over will is for assets that are left out of, or in other words “pour-over” your trust.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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