The biggest myth surrounding estate planning involves Wills. We regularly hear this statement (or some variation of it): “I have a will so my family won’t have to go through probate.” Sadly, nothing could be further from the truth: a Will FORCES probate. A Will is merely instructions to the court of what you want after you pass away. If the only planning you’ve done is via a Will, you are almost guaranteeing your loved ones will have to go through probate court or at least some kind of informal probate process.
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A trust-based estate plan still includes a Will; it is just a special Will called a Pour-over Will. This special Will accomplishes the same four tasks as a normal Will, except rather than making distributions out of the probate estate via the Will, the Will directs that all probate assets be poured into the revocable living trust. This Will and the pour-over into the trust effectively serves as a back-up, Plan B, in the unexpected event that not all of your assets were in the trust, such as if you purchased a new house years after creating your plan but neglected to deed the house into the trust. The Will then will ensure that all such assets are deposited into the trust name, and then the trust will control or distribute the assets in accordance with its terms. This, rather than distribution via Will, allows more complicated distributions schemes, including on-going trusts which provide asset protection. Our Wills also contain provisions that would create a back-up trust with identical terms as your revocable living trust in the even that such trust did not exist at the time of death for any reason. Thus, the Pour-over Will is a back-up, Plans B and C if you will, to ensure that your wishes are carried out.