Updated: Feb 8, 2021
Did you know that there are multiple types of wills you could have? Don’t worry, most people think there is just one “type” of will. But there are some very major differences in these “types” of wills. So, what are they and how do you choose? We can help with that!
Ok, so this is what most people think of when you start talking about making an Estate Plan or a plan for your assets after you pass. A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. If you die without a will, not only will your wishes not be honored, but your loved ones will have to use their personal resources to get probate started and it will take much longer to accomplish the division of your estate without your wishes clearly stated in a legal document.
With a will your estate will still go through probate, but it will be easier for a judge to make a determination as to what should be done with your estate and will make it move a little quicker. However, if you wish to avoid probate and expedite the division or availability of assets, there are other options (such as a revocable living trust with a pour-over will).
Will with Testamentary Trust
A testamentary trust is a legal and fiduciary relationship created through your will. A testamentary trust is commonly used when someone wants to leave assets to a beneficiary (such as minor children), but doesn't want the beneficiary to receive the assets until a specified time, such as when they reach a certain age. So even though you would create the will and testamentary trust while you’re alive, the trust does not exist until after your death.
After death, the will must still go through probate before the testamentary trust can be formed. After the trust is formed, the executor follows the instructions in the will to transfer the specified property into the testamentary trust. With a testamentary trust, the beneficiary is the owner of the trust, so the trust assets would still be available to creditors of the beneficiary, even before the beneficiary has reached the specified age.
A pour-over is a special type of will that works with a trust-based estate plan. Trusts provide a way to avoid probate when transferring assets after the your death. With a trust-based estate plan, the bulk of your assets will already be in the trust at your death. A pour-over will covers assets that are not in the trust at the time of your death. If you don’t have this pour-over provision in your will, remaining assets would instead either (1) be split up according to the terms of a prior will, which could be inconsistent with the trust, and could complicate settling your estate or (2) be subject to laws of intestate succession, which is how assets are divided up if pass without a will.
Pour-over wills act as a catchall so that it doesn’t undermine the otherwise smooth operation of a trust. They ensure any assets that are not in your trust at death, whether by accident or on purpose, will still go into the trust.
Hammelman Law, PLLC handles estate planning and business law matters in Northern Virginia and Maryland. In Virginia we are given the title of Attorney and Counselor at Law. Melanie Hammelman takes not only the title of Attorney seriously, but the title of Counselor at Law, as well. Melanie provides her clients with advice and counseling as to the best options for an estate plan, given the specific family situation and ultimate desire for asset distribution.