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The Difference between a Will and a Pour Over Will

The term "living trust will" is not really a legal term. Even so, when people start to check out living trusts, it is a term they commonly use. People commonly think of using a will to distribute property after someone’s death. A trust also distributes property after a person’s death, which can lead to the confusion and the use of the term "living trust will".

In a sense, a living trust is a substitute for the standard will. A living trust and a will are two separate items. So, as a lawyer, if someone asks me about a "living trust will", I’m not sure what they would like.We are talking about two distinct legal documents—a living trust and a will. Actually, there should always be a will accompanying a living trust. It is called a "pour over will". Using a pour over will is a safety device implemented with living trusts.

There are different terms for living trusts—"living revocable trust" or " revocable living trusts". The term "revocable" is important because the trusts can always be revoked. That means that the maker of the trust can revoke the trust and move everything back to status quo anytime he or she wants.

Living trusts are used to avoid probate which will give their heirs a larger inheritance and prevent them from having to pay estate taxes. A revocable living trust only avoids probate if it is properly managed by the person who sets it up.

The majority of the people who set up a living trust do not avoid probate. Some in the legal community are coming out in opposition to living trusts since so many clients are not really getting the probate protection they thought they were getting. This isn’t a problem with the trust. The drawback is how the attorneys are educating their clients. Most of them don’t give the client enough education, and they don’t know how to "use" their living trust, so the trust fails to avoid probate.

The deceased’s assets will need to be probated if the living trust does not function properly. Going through a long legal process at the probate court will be necessary at this point. When there is a will, the probate court will use it to help them make decisions throughout the probate proceedings. When there is no will, it becomes what is called an "intestate" proceeding. When someone dies without a will, he or she is said to be "intestate".

When you get a revocable living trust, you should also get a pour over will. When assets need to be probated, the probate courts will use the pour over will to help them through the process. If all goes well, nothing will need to be probated and the pour over will won’t be used.

A standard will distributes the property outright, unlike the pour over will which does not. 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. When you order Guaranteed Millionaire, you will receive absolutely FREE the DVD, " Using the Law to Make Money and Protect Your Assets". You will get $5 off when you order by the end of the month.

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