Trusts Without Pour-Over Wills
This is the first article in a new series, Fatal Estate Planning Mistakes, which will focus on “war stories” regarding common estate planning mistakes, as seen by a probate and trust litigator. These stories are meant to serve as lessons for the average reader. If the reader sees the mistake below in his/her estate plan, please contact Robert Sewell, Esq., to discuss how to remedy the problem.
THE FATAL FLAW: Frank creates a trust. He titles no assets in the name of trust. He fails to create a pour-over will believing the trust was enough. Frank disinherits three of his six children from the trust because he supported these three disproportionately to the other children during his lifetime. Frank dies believing all his property was in the trust. The result is that the disinherited children inherit equally to the other children as Frank is “intestate,” meaning he has no estate plan. This situation is not unique.
THE REMEDY: Individuals who wish to create a trust should also create a pour-over will. A trust is a device that presently allocates property, as identified by the trust maker (“trustor”), to be placed into the trust. If the trustor does not title his/her property in the name of the trust, the property is not in the trust. Rather, upon the testator's death, the property is in the “estate.” A pour-over will directs property left outside the trust on the trustor's death to be poured into the trust after death. One might argue that another solution is to title everything in the name of the trust before death; however, whether intentionally or unintentionally, most individuals leave property out of the trust. If you have a trust, but do not have a pour-over will, your estate plan is incomplete.
(Please note: I see this estate planning mistake often when individuals purchase trusts from the internet or from a certified document preparer. If this is your situation, please have your estate plan reviewed.)