Pour-Over Will Help Guide

Explanation of Your Pour-Over Will

Below, you will find a detailed description of each of the main sections of our pour-over will in the order that they appear in the document. Note that some of these sections may be omitted from your document depending on how you answer the relevant questions. If you choose to create a standard last will and testament when answering the questions, then skip back to the section entitled “Last Will and Testament Help Guide” to learn more about the terms included in that document.

Introductory Language

The paragraph appearing immediately after the title identifies the testator, lists the testator’s address, and states that the testator is creating this will in sound body and mind. This means that the testator has the mental capacity to understand the contents of the will and so intends to create this will. The final sentence explains that any prior wills or codicils (amendments to wills) that may exist are no longer valid after executing this will. “Executing” here simply means the testator’s act of signing the will in the presence of witnesses.

Payment of Remaining Debts and Expenses

Next, the testator will direct that all of his or her remaining debts and expenses are to be repaid out of the residuary estate. The “residuary estate,” or “residue,” is the portion of the testator’s estate comprised of the assets that remain after paying the testator’s final debts and expenses and after any specific gifts named in the will have been given. By law, your legally enforceable debts must be repaid upon your death, if possible. Other expenses that need to be paid may include funeral expenses, final healthcare expenses, any costs of having the estate administered in court, and any outstanding taxes.

Estate Disposition

This is the key pour-over clause that automatically transfers any and all of the testator’s remaining property to the testator’s revocable living trust upon the testator’s death. The testator often already transfers many of his or her assets into the trust prior to passing away. This clause is essentially a safety net in case the testator forgets about some of his or her property or dies before having the chance to transfer all of the property into the trust.

Executors

This section appoints the executor or co-executors that will be responsible for administering and distributing the estate after the testator’s death. If the first-choice executor is unavailable or unwilling to serve, then the alternative executor named will serve. If none of the named executors are able to serve, then the court will appoint one.

Depending on your answers to the questions, the executors may be required to post a bond to secure against mishandling of the estate funds and may be required to receive a reasonable compensation for their services.

Finally, the terms of this section allow the executors to utilize any expedited procedures or unsupervised processes that may be available under state law to administer the estate as quickly and efficiently as possible.

Executor Powers

Any executors administering the estate will have all powers available under state law for such purposes. Examples include the power to sell, lease, and invest estate assets. Keep in mind that, although the executors have many powers under state law, they must always seek to carry out the intent of the testator as much as possible. Therefore, these powers should be viewed as tools for carrying out the testator’s wishes.

No Liability

The executors may not be held liable for any wrongdoing so long as they distribute assets in compliance with the will. Unforeseen complexities in administering an estate may sometimes scare good executors away from serving. This language ensures that they will not be exposed to personal liability for trying to carry out the testator’s wishes.

Guardians of Minor Children

If the testator has minor children living (biological or adoptive), then this clause appears stating that the named guardian will receive custody of the children in the event the testator dies without a surviving spouse. An alternative guardian is appointed in case the first-choice guardian is unable to serve.

Guardian Powers

If the testator has minor children living (biological or adoptive), then this clause is included to give the guardian the same powers as a parent having legal custody of the children. The guardian is required to see to it that the children have reasonable visitation with members of their immediate family.

After-Born or Adopted Children

Should the testator have any children born or adopted after signing the will, then this clause operates to prevent the will from being invalidated and to require that such children be treated similarly as any other children already included under the will.

Disposition of Remains

If you choose to include it, then in this section the testator sets forth his or her wishes regarding any funeral service and how his or her remains should be disposed of (e.g. by burial, cremation, etc.).

Interpretation and Captions

When construing the meaning of the terms used in the will, words will be considered to include either or both genders and to include the singular and plural. Section captions or headers are included for reference only and do not affect the meaning of the will.

Testator’s Signature

When the testator has carefully read all of the terms of the will, he or she must sign in the presence of at least two disinterested witnesses. This means that the witnesses should not be beneficiaries under the will or have any other conflict of interest in witnessing the signing.

The testator must also have the mental capacity to understand the contents of the will and that he or she is signing it. If the testator is merely physically unable to sign, then he or she may designate someone else to sign it on his or her behalf. Finally, the testator must sign freely and not under duress or undue pressure from others.

Witness Acknowledgment

The testator and the witnesses must all be at least 18 years of age and must sign in the presence of each other (everyone should see each other sign). The acknowledgment affirms their ages, that the testator is of sound mind and memory, and that the signature was not procured fraudulently.

Notary Acknowledgment

For certain states, a notary section will be attached. Although not required, it is recommended that a notary also witnesses the signing, which will help prove the authenticity of the will should it ever be challenged in court.

Self-Proving Affidavit

In states that allow it, a self-proving affidavit will appear here. Although not required, it is recommended that the two witnesses and a notary sign this affidavit, which will help prove the authenticity of the will should it ever be challenged in court.

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