Frequently our
clients create revocable living trusts as a substitute for a will. There are a
number of reasons that they choose this estate planning mechanism, most common
among them being probate avoidance and control during periods of incapacity.
However, in order for the trust to control the estate, it must hold title to
all of the decedent's property. Unfortunately, sometimes due to poor planning,
and sometimes simply because of an unknown or unexpected windfall, individuals
with living trusts die with some estate property outside the trust. In such
circumstances, it becomes necessary to transfer the decedent's property into
the living trust after death in order for the decedent’s planned distribution
to be followed. This is accomplished through what is known as a "pour-over"
will. A pour-over will simply "pours over" any assets owned by the
decedent at the time of death into the revocable living trust. Such wills
should always be executed whenever revocable living trust based planning is
done if the individual desires the trust to control distribution of all estate
assets. The absence of a pour-over will in such circumstances will result in
some assets being distributed pursuant to the plan laid out in the trust, and
other assets being distributed through the probate court process under the
intestacy statutes of the State. In a Mississippi, that means that children and
spouses would share in the probated estate assets equally.