The Difference between a Will and a Pour Over Will
The term "living trust will" is not really a legal term. Nevertheless, it is a term occasionally used as people begin to explore the use of a living trust. People commonly think of using a will to distribute property after someone’s death. The confusion probably comes, because people know that the trust will distribute property after a death.
In a sense, a living trust is a substitute for the standard will. A living trust and a will are two separate items. So, when someone asks me for a "living trust will", I’m not sure what they really want.A will and a living trust are two very different legal documents. Actually, there should always be a will accompanying a living trust. It is called a "pour over will". A pour over will serves as a fail-safe mechanism for living trusts.
Most trusts do not prevent heirs from going through probate. There is a legitimate argument in the legal community against living trusts, because so many of them fail to give the probate protection that was "sold" to the family. The trust is not the difficulty. The way attorneys are educating their clients is the problem. Clients need to be given enough education to know how to "use" their living trust so that it will avoid probate.
A living trust will avoid probate if it is handled appropriately. If it doesn’t, then the deceased’s assets will need to be probated. There is no other option than going to the probate court for a prolonged legal proceeding. If the deceased had a will, then the probate court will use the will to guide the probate process. If there isn’t a will, the probate court will treat the case as an "intestate" proceeding. When someone dies without a will, he or she is said to be "intestate".
A living revocable trust should be implemented with a pour over will. The probate courts can use the pour over will to direct them through the process if probate becomes necessary. Hopefully, the pour over will won’t ever be used, because the trust will avoid probate on all of the decedent’s assets.
A pour over will does not outline how property is distributed in the same way a traditional will does. When property needs to be probated, the pour over will tells the court that all of the property should be "poured over" into the living revocable trust, and then distributed as outlined in the living trust. Lee R. Phillips’ new book, Guaranteed Millionaire discusses revocable living trusts and pour over wills in detail.
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