Also known as: pour over · pourover · pour-over will · pour-over trust · pour over will · pourover trust
Written by attorneys — see sources below.
A provision in a will that adds property to an inter vivos trust or funds a trust whose terms appear in a separate instrument executed during the testator's lifetime. The devise may be validated by statute, incorporation by reference, or independent significance. Revocation or termination of the referenced trust before the testator's death causes the devise to lapse unless the will provides otherwise.
Phoebe Park executes a will that directs the residue of her estate to the trustee of her existing revocable investment trust. The trust was created and funded during her lifetime with securities. At her death the poured-over assets join the trust and are administered under its terms including any amendments made before death.
Peter Park signs a will pouring his brokerage account into a trust whose terms appear in a document executed the same day. The trust receives no assets until the will takes effect. State statute validates the devise so the account passes to the trustee for administration under the trust instrument.
Piper Patel executes a will leaving startup shares to the trustee of her revocable trust. One month before death she revokes the trust in writing and the will contains no alternate disposition. The specific devise lapses and the shares pass to her heirs by intestacy.
Vickie Lynn Marshall, also known as Anna Nicole Smith, met J. Howard Marshall II in October 1991 and married him on June 27, 1994. J. Howard died on August 4, 1995. Although he had given Vickie substantial gifts and money during their relationship, his will made no provision for her. Vickie maintained that J. Howard had intended to secure her future through a catchall trust. Respondent E. Pierce Marshall, one of J. Howard’s sons, stood as the sole ultimate beneficiary under his father’s estate plan, which consisted of a living trust and a pourover will directing all remaining assets into the trust. In January 1996, while J. Howard’s estate remained subject to probate proceedings in Harris County, Texas, Vickie filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Central District of California. In June 1996 Pierce filed a proof of claim in that bankruptcy case asserting that Vickie had defamed him through statements made to the press shortly after J. Howard’s death. Vickie answered and asserted a counterclaim alleging that Pierce had tortiously interfered with her expected gift by imprisoning J. Howard against his wishes, surrounding him with hired guards, making misrepresentations to him, and transferring property contrary to his expressed intentions. The Bankruptcy Court granted summary judgment to Vickie on Pierce’s defamation claim. After a trial on the merits it entered judgment for Vickie on her tortious interference counterclaim and awarded her more than $449 million in compensatory damages, less any amount recovered in the Texas probate action, plus $25 million in punitive damages. Pierce then moved to dismiss for lack of subject-matter jurisdiction, arguing that the claim belonged exclusively in the Texas probate proceedings. In the Texas Probate Court, Pierce sought a declaration that the living trust and will were valid. Vickie initially challenged the instruments and asserted her own tortious interference claim there but voluntarily dismissed both claims after the Bankruptcy Court’s judgment. Following a jury trial the Probate Court declared the trust and will valid. On review of the Bankruptcy Court’s judgment the District Court rejected the probate-exception argument. The court adopted the Bankruptcy Court’s findings with supplements. It awarded Vickie approximately $44.3 million in compensatory damages together with an equal amount in punitive damages. The Ninth Circuit reversed. It held that the probate exception barred federal jurisdiction because the claim raised questions ordinarily decided by a probate court and because the Texas Probate Court had asserted exclusive jurisdiction over all of Vickie’s claims. The Supreme Court granted certiorari in 2005.
View caseThe devise lapses unless the will provides otherwise. The property then passes under the residuary clause or by intestacy. Multiple bar questions test this exact outcome when the will is silent on revocation.
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Validation occurs by statute, incorporation by reference, or independent significance. The doctrine of independent significance is preferred because it permits post-execution amendments and does not require the trust instrument to exist at will execution.
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Yes. The Restatement expressly permits a pour-over to fund a trust that receives no assets until death provided the trust terms appear in a lifetime instrument. Nearly all states have statutes confirming this result.
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The doctrine validates the devise when the trust has significance apart from the will, such as an employer benefits booklet or a signed donor agreement used for non-testamentary purposes. Post-execution amendments are given effect under this theory.
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…an evidentiary hearing. The court reasoned: “The intent of Mr. Taliaferro (as expressed in the trust document) to create a pour-over trust is clear enough, but the fact that he did no overt acts transferring property to the trust leaves his intent in question.” After the evidentiary hearing, the trial court found the Will C.…