Also known as: pour over devise · pourover devise
Written by attorneys · grounded in primary & secondary sources — see below
A testamentary provision in a will that directs property at death into an inter vivos trust. The trust may already hold assets or may receive its initial funding from the will itself, provided the trust terms appear in a written instrument executed during the testator's lifetime. Validation occurs by statute, incorporation by reference, or independent significance.
Pearl Porter executed a written trust instrument naming her niece as trustee and setting out rules for managing a family farm. She never transferred any assets into the trust during life. In her later will Pearl directed all farm equipment and accounts to pour over to the trustee of that same trust. After Pearl's death the court upheld the devise because the trust instrument had existed independently before the will was signed.
Patrick Phan signed a revocable trust instrument to hold interests in several energy projects and later executed a will pouring his LLC membership interests into that trust. After the will Patrick amended the trust's management provisions without republishing the will. At Patrick's death the court allowed the poured-over interests to enter the trust and be administered under the amended terms because the trust had an independent commercial purpose apart from the will.
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No. A pour-over devise remains valid when the trust instrument was executed during the testator's lifetime even if the trust held no assets until death. The will itself supplies the initial funding.
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The devise lapses. Once the trust no longer exists at the testator's death there is no receptacle for the property and the assets pass by intestacy or residuary clause unless the will provides otherwise.
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Yes. Under the governing statute the poured-over property is administered according to the trust terms as amended before or after the testator's death unless the will directs otherwise.
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Validation occurs through incorporation by reference when the trust instrument existed at will execution or through independent significance when the trust had a purpose separate from receiving probate assets.
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…the testator before the execution of his will and which he amended after the will’s execution. Recognizing the importance of the pour-over devise in modern estate planning, we explained that such transfers do not violate the statute of wills despite the testator’s ability to amend the trust and thereby change the disposition of…