Pour over will

How it works

In Minnesota, for example, a will may leave property to the trustee of a trust established or to be established during the will maker’s lifetime by the will maker, jointly with another person or by another person, or established at death by the gift to its trustee, provided the will identifies the trust and its terms appear either in a written instrument other than a will executed before, at the same time as or after the will, or in another individual’s will if that individual died before the will maker, regardless of the existence, size or character of the trust’s property, including funded or unfunded life insurance trusts even when the settlor retained any or all ownership rights in the insurance contracts, and other states differ.

In Minnesota, for example, the statute also preserves devises under wills executed before the historical cutoff quoted in Sources, and other states differ.

In Minnesota, for example, a gift to a trust meeting these identification and documentation requirements is not invalid merely because the trust is amendable or revocable, or because it was amended after the will was executed or after the will maker’s death, although revocation or termination of the trust before the will maker’s death causes the gift to lapse unless the will provides otherwise, and other states differ.

What happens when property reaches the trust?

In Minnesota, for example, unless the will provides otherwise, property left to a trust meeting the identification and documentation requirements above becomes part of the receiving trust rather than a testamentary trust of the will maker and must be administered and disposed of under the receiving trust’s governing instrument, including amendments made before or after the will maker’s death, and other states differ.

For a broader review of the property a will addresses, read What a will controls. Use the property transfer chart to explore related ownership and designation topics.

Points that are easy to confuse

In Minnesota, for example, after the settlor’s death, property in a trust that was revocable at death is subject to the settlor’s creditors’ claims, estate administration costs, funeral and remains disposal expenses, and statutory allowances for a surviving spouse and children to the extent the probate estate cannot satisfy those obligations, subject to the settlor’s right to direct the payment source and whether or not the trust contains a spendthrift provision, and other states differ.

For questions about revising the will, read Will changes, revocation and family events. Keep the will and trust available when discussing the plan with your attorney.

Common questions