What Is a Florida Pour Over Will and How Does It Work?

A pour over will in Florida is a legal tool that directs any assets not already in a living trust to be transferred into the trust upon your death, ensuring that your estate plan is complete.

In Florida, a pour over will is an effective way to ensure that all assets are managed by the living trust’s terms. Pour over wills are used to (1) capture any assets missed by the trust, (2) provide a backup to the trust, (3) ensure comprehensive estate planning, and (4) centralize control of assets after death.

How Pour Over Wills Work

A pour over will functions as a backup mechanism for your estate plan. It captures assets that were either unintentionally left out of the living trust or acquired shortly before death.

When someone with a pour over will dies, any assets held in their name will “pour over” into the living trust, which will then manage and distribute those assets according to the trust’s instructions.

However, assets covered by the pour-over will still have to go through the probate process before being transferred into the trust. This probate requirement distinguishes a pour-over will from assets that are already held within a living trust, which avoids probate entirely.

To create a pour over will in Florida, you must draft a will that specifically names your existing living trust as the beneficiary of all remaining assets.

Why Are Pour Over Wills Needed?

The trust-based estate plan does not affect any assets unless the assets have been conveyed to the trustee of the trust. The process by which the trustmaker transfers their assets to their living trust is called funding the trust.

Often, someone creates a living trust agreement but neglects to convey their individually owned assets to the trustee during their lifetime. After death, the trust owns no assets to administer as the trustmaker had directed in the trust agreement.

A “pour over” will fund the decedent’s living trust after death. The pour-over will bequeaths individually owned assets to the decedent’s living trust rather than to their individual heirs. In other words, the pour-over will appoints the living trust as its heir. The will says that any assets in the decedent’s name (assets that haven’t yet been put in the trust) are “poured over” to the living trust.

A pour-over will administers the decedent’s assets through a probate proceeding; the assets are legally conveyed to the trustee of the living trust at the conclusion of the probate. The best practice is to transfer assets to the living trust before death to avoid the delay and expense of probating a pour-over will.

A Florida pour over will is a legal document that directs any assets not already in a trust to be transferred into a living trust upon the creator’s death. It acts as a safety net, ensuring that any forgotten or newly acquired assets are added to the trust. The pour over will works alongside a revocable living trust to complete the estate planning process, providing comprehensive control over assets. In essence, it ensures that all your property is eventually managed by the trust’s terms, even if it was not initially included.

Requirements for Pour Over Wills in Florida

In Florida, pour over wills must meet the standard requirements for any will to be valid.

The requirements include that the will must be in writing, signed by the testator (the person creating the will), and witnessed by at least two individuals in the testator’s presence. Additionally, the pour over will should clearly name the living trust as the recipient of the remaining assets.

The living trust itself must also be validly created and in existence at the time of the testator’s death for the pour over provisions to be effective. Failure to meet these requirements can result in an invalid pour over will, which may lead to unintended consequences for the distribution of the estate.

Advantages of Having a Pour Over Will

A pour over will provides a safety net for any assets not included in a living trust during your lifetime.

It simplifies estate management by directing all assets into a single trust for distribution.

And it ensures that the terms of the living trust govern all transferred property, offering consistent control.

Frequently Asked Questions

Does a pour over will avoid probate in Florida?
No, a pour over will does not avoid probate. Assets directed by a pour over will must go through probate before they are transferred to the living trust.

Can a pour over will be the only estate planning document?
No, a pour over will is designed to complement a living trust. It is not effective as a standalone estate planning tool..

What assets are covered by a pour over will?
A pour over will covers any assets that are not already in the living trust or otherwise accounted for by beneficiary designations or joint ownership arrangements.

Can you revoke a pour over will?
Yes, a pour over will is revocable during your lifetime, allowing you to amend or cancel it as needed. It becomes irrevocable upon your death.

About the Author

Gideon Alper is an attorney who specializes in asset protection planning. He graduated with honors from Emory University Law School and has been practicing law for almost 15 years.

Gideon and the Alper Law firm have advised thousands of clients about how to protect their assets from creditors.