Pour-Over Wills in New York

When it comes to estate planning in New York, individuals have several options for ensuring their assets are distributed according to their wishes. One of these options is a pour-over will. A pour-over will is a legal document that is used in conjunction with a trust and is designed to transfer any assets that are not already in the trust to the trust upon the testator's death. This can help to ensure that all assets are distributed according to the trust's provisions and can avoid the probate process. To discuss how a pour-over can be utilized in your estate plan, contact a knowledgeable New York estate planning lawyer to discuss your estate planning goals.

A pour-over will essentially acts as a safety net for any assets that are not already part of the trust. When an individual creates a trust, they must transfer ownership of all assets they wish to place in the trust. However, it is common for some assets to be left out of the trust due to oversight or because they were acquired after the trust was created. In this case, the pour-over will kicks in, directing the executor to transfer any assets not in the trust to the trust upon the individual's death.

Creating a pour-over will. In order to create a pour-over will, an individual must first establish a trust. This trust is created in order to hold the individual's assets and provide for their distribution upon their death. The trust is managed by a trustee, who is responsible for carrying out the provisions of the trust according to the individual's wishes.

Once the trust is established, the individual can create a pour-over will that directs any assets not already in the trust to be transferred to the trust upon their death. The pour-over will should also name an executor who will be responsible for administering the estate and ensuring that the pour-over provisions are carried out.

Avoiding probate. One of the main benefits of a pour-over will is that it can help to avoid the probate process. Probate is the legal process by which a court determines the validity of a will and oversees the distribution of assets to beneficiaries. It can be a lengthy and expensive process that can delay the distribution of assets to beneficiaries. By utilizing a pour-over will, the individual's assets can be distributed directly to the trust, minimizing the time, expense, and impact of the probate process.

Privacy. Another benefit of a pour-over will is that it provides added protection for an individual's assets. The trust is a private document that is not subject to public record, meaning that an individual's wishes and the details of their assets remain confidential. This can be especially important for individuals who have complex family situations or who wish to keep their financial affairs private.

Avoiding intestacy. In addition, a pour-over will can help to ensure that an individual's assets are distributed in accordance with their wishes. Without a pour-over will, any assets not in the trust would be subject to the laws of intestacy, which dictate how assets are distributed when an individual dies without a will. By utilizing a pour-over will, an individual can ensure that all of their assets are distributed according to their specific wishes.

It is important to note that a pour-over will should not be used as a substitute for a comprehensive estate plan. While a pour-over will can help to ensure that assets are properly distributed to the trust, it does not address other important estate planning issues such as guardianship of minor children, healthcare directives, or charitable giving. It is important to work with an experienced New York estate planning lawyer to create a comprehensive estate plan that addresses all of these issues.

• Matter of Pozarny, 177 Misc. 2d 752 (N.Y. Surr. Ct. 1998). In this case, the court grapples with the validity of a pour-over provision in a will, aiming to transfer estate assets to a trust. The court identifies several flaws in the trust's structure, rendering it ineffective for a pour-over. Key issues include the looseleaf nature of the trust instrument, allowing easy removal and substitution of pages, creating uncertainty about the trust's authenticity. The court is troubled by the potential for fraud or mistake in the looseleaf format and questions the trust's compliance with statutory requirements. Ultimately, the court deems the trust invalid as a receptacle for the pour-over, emphasizing the importance of upholding legal safeguards in wealth transfer.
• Peck v. Peck, 2019 N.Y. Slip Op. 30311 (N.Y. Surr. Ct. 2019). The court confronts the intricacies of a pour-over will in the context of a motion by a court-appointed property guardian. The decedent's estate plan involves a pour-over will directing assets into a revocable trust. The guardian seeks to intervene in proceedings related to the estate, emphasizing potential risks to the trust if the son takes positions triggering an in terrorem clause, which could affect the infants' interests. The court, while addressing the pour-over will complexities, denies the intervention motion, underscoring concerns about harm to the trust and beneficiaries arising from the guardian's proposed defensive and oppositional actions in the proceedings.

These cases demonstrate the importance of working with an experienced estate planning attorney in New York to create a valid and effective pour-over will. By following the legal requirements for the execution of the will and ensuring that the testator has the necessary mental capacity to execute the pour-over will, individuals can help ensure that their wishes are carried out and their assets are properly distributed to their beneficiaries.

Pour-over wills can be a useful estate planning tool for individuals in New York who want to ensure that their assets are distributed according to their wishes. By working with an experienced estate planning attorney serving New York, individuals can create a comprehensive estate plan that includes a pour-over will and a trust to provide for the transfer of assets upon their death. With careful planning and attention to legal requirements, individuals can help ensure that their loved ones are protected and their assets are distributed in the most efficient and effective manner possible. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Manhattan, Long Island, Brooklyn, Suffolk County, Westchester County, Staten Island, and Bronx.