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The Difference between a Will and a Pour Over Will

By: Berber

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The term "living trust will" is not really a legal term. Nevertheless, it is a term occasionally used as people begin to explore the use of a living trust. A will is what people naturally think of when we think of how property will be distributed after someone dies. The confusion probably comes, because people know that the trust will distribute property after a death.

In a sense, a living trust is a substitute for the standard will. A living trust and a will are two separate items. So, when the term "living trust will" is used, as a lawyer, I am not sure what is being referred to.There is a legal document called a living trust and a different legal document called a will. Actually, there should always be a will accompanying a living trust. It is called a "pour over will." A pour over will serves as a fail-safe mechanism for living trusts.

Other names for living trusts are "living revocable trust" or "revocable living trusts," because they may be revoked. The ability to change his or her mind and repeal the trust is the advantage of a revocable living trust. Heirs will receive a larger inheritance, avoid probate and reduce estate taxes by using living trusts. Only if a living trust is properly set up and managed will the heirs be able to avoid the probate process.

Most people who get 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. The trust is not the difficulty. It is a problem with the attorneys and how they educate 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.

When the living trust fails to protect the family against probate, the deceased's assets need to be probated. Going through a long legal process at the probate court will be necessary at this point. A will helps guide the probate court through the probate. When there is no will, it becomes what is called an "intestate" proceeding. Dying without a will is dying "intestate."

Living revocable trusts and pour over wills should be provided together. The probate courts can use the pour over will to direct them through the process if probate becomes necessary. When the trust performs as intended and probate is avoided, the pour over will won't be needed.

The difference between pour over wills and standard wills is that a standard will details property distribution, but a pour over will does not. After the probate proceeding, the pour over will instructs the court to "pour over" all of the assets into the living revocable trust to be distributed as detailed in the living trust. Revocable living trusts and pour over wills are discussed in detail in Lee R. Phillips' new book, Guaranteed Millionaire. Get a FREE DVD, "Using the Law to Make Money and Protect Your Assets" by clicking the Free DVD link.

Article Source: http://depositarticles.com/

For more information on living trust wills please visit our website above and get a free 90 minute informational DVD.

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