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Pour-over Will
What is a pour-over will?

A pour-over will will take any assets kept outside of a living trust during your lifetime and put them in your trust at death.

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What is intestate succession?

If you die without a last will, state law will provide a plan for distributing your assets, which may or may not be desirable, known as the intestate succession law, or intestacy law. (“Intestate” means without a will.) The exact amount or proportion will depend on what state you live in when you die, and whether your state provides for community property or not, but typically:

  • If you have a spouse and children, your spouse gets one-half or less of your separate property, and the rest is divided equally among your children
  • If you have a surviving spouse and no children, your spouse gets one-half or less of your separate property, and the rest goes to (or is shared with) your parents
  • Property going to minor children will be held by a guardian
  • Intestacy law does not include step-children, friends or charities
  • Intestacy law may or may not provide for a domestic partner, depending on what state you live in (the majority of states do not provide for domestic partners)
  • You must have a will to disinherit someone
  • Whose plan do you want: your own, or the government's?
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What do I do after I sign my will?

After your last will is fully signed by you and your witnesses, you should store your last will in a safe, secure place. You need to tell your executor where your will is kept and how to get it (where to find the safe deposit box key, what the home safe combination is, etc.). Your will does no good if no one knows where it is located or no one can obtain it.

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Can I make changes to my last will?

Yes, you can make changes to your last will when your financial, economic or personal situation changes. However, unlike a living trust, you cannot simply cross out language or write in new language on your last will and initial the changes. To amend a will, you need to make a codicil, or redo your entire will (revoking the prior version), which is signed and attested with the same formalities as your original will.

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Will others inherit my debts after I die?

Generally, no. No one can inherit your unsecured debts after you die unless they were co-signed on the account with you (such as a credit card) or acted as your surety or personal guarantor (on a personal loan). If the debt is solely in your name, then no one is responsible for that debt besides you.

However, that does not mean the debt will not be paid. One of the duties of your executor or personal representative is to determine what debts you have. Your executor then uses the proceeds from your estate prior to distributing to your beneficiaries to pay those debts. If the debts are greater than your cash assets, then your non-cash assets are sold and used to pay as many debts as possible. If your debts exceed your assets, then your creditors take a loss (and of course, your beneficiaries get nothing).

The only exception is for secured debts (home loan, car loan, etc.), where a beneficiary may agree to take the asset subject to the debt and make the remaining payments on it. That is the only time a beneficiary will be liable for your debt - if they agree to it.

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Can I choose my guardian in my last will?

Yes. In fact, your last will is the only place where you can name a guardian for minor children. Choose a guardian who will look after and care for your children as one of their own.

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Is my last will valid and legal? What makes your last will valid and legal are capacity (soundness of mind), formality (a writing), and attestation (the signatures of witnesses). If you sign your last will of your own free will, without dementia, and without the undue influence of others, then you have soundness of mind. If your will is expressed in a clear, legible writing and is understandable, it meets the formality requirements. If your will is signed by two or three witnesses (depending on the state in which you reside) who attest to both your soundness of mind and the genuineness of your signature, you have met the attestation requirement. Keep in mind that your witnesses cannot be beneficiaries named in your last will. Back to the top
If I move, is my will still valid?

Generally, if your will was valid and legal when you created it in the state which you previously lived in, when you move it will most likely be considered valid and legal as well. However, it will most likely be interpreted consistent with the laws of the state where you die, not the state where the last will was made.

Some states require that the original witnesses of your will re-confirm the validity of it. These laws vary from state to state. Check your new state’s laws and don’t just assume everything is OK. It may be prudent to redo your will when moving to another state.

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Does my will have to be filed in court? No, your will does not have to be filed in court or with any public agency before you die. After death, your will is presented to the probate court by your executor or personal representative and is filed with the court at that time. Back to the top
When should I make changes to my last will? You should consider making changes when the following occur: marriage, divorce, birth or adoption of children, re-marriage, when children are no longer minors, birth of grandchildren, significant growth of your estate, significant changes in your medical condition or health care needs, receipt of an inheritance, the death of your spouse, or the death of other named beneficiaries. Back to the top
Should I name small children as beneficiaries in my will? There is no restriction on leaving property to minor beneficiaries (persons under the age of 18), but the probate court may choose to appoint a guardian or conservator to hold and manage the inheritance until the children reach age 18. One reason for having a living trust is that you can provide for an inheritance to be held and managed for minor beneficiaries by persons you choose until the child turns 18 or any other later age. Often children are not ready to manage significant wealth when they are only 18 years old. The use of a pour-over will and a living trust eliminates the need to name minor children as beneficiaries in your last will. Back to the top
Is it possible to disinherit someone? Yes, you may disinherit someone. However, keep in mind that in some states, if you attempt to disinherit your spouse or children, your spouse or children may have a statutory right to a portion of your estate regardless of what your last will says. Generally, people other than a spouse or children can be freely disinherited. Back to the top
What if a beneficiary dies before me? Unless some other provision is made, the inheritance for that person will lapse and will become part of your residual estate. Your residual estate is everything leftover after payment of debts and specific gifts (or bequests) and is distributed to your residual beneficiaries. Another reason for having a living trust is that you can easily provide for contingencies, such as what happens if a beneficiary dies before you do. If the deceased beneficiary is your child, most often that child’s share of your estate would go to his or her children (your grandchildren), but you will need to expressly provide for this somewhere in your last will or living trust. Back to the top
Can my will be challenged after I die? Yes, but such challenges tend to be rare. If you have disinherited a spouse or child where state law provides for a statutory share, they can challenge the will in favor of the statutory share. Anyone else who wants to challenge your last will would need to show that you were not of sound mind when signing it, that your signature was forged, or that there was some other fraud or undue influence which made the will invalid, and these are generally difficult to prove. Back to the top
Should I include my burial plans in my will? It is possible that your will won’t surface until several weeks after your death so it may be wise to let others know of your burial wishes instead of just stating them in your will. If you have prepaid for a burial plot, headstone or funeral, let your immediate family know where they can find the paperwork. Back to the top
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