Using a Pour Over Will for Your Estate Plan? Do Not Forget to Plan for the Tangible Property that may not Belong in Trust!

Previously I have blogged about the pour over will which uses a trust set up  prior to death and the will pours your assets into the trust. One provision I have not posted about is Florida Statute 732.515. This section states that a testator may provide informal memorandum for the disposal ofpersonal property. These are read in tandem with a will not as a substitute. Normally I would never suggest using a less formal estate plan after all you want to have your affairs in order but this section has a unique use in conjunction with pour over wills that can be rather useful.

• A pour over will works in tandem with a revocable trust usually the testator will set themselves up a trust with one dollar or some nominal amount and themselves as trustee.
• The testator then executes a will that leaves all of their property to that trust.
• The end all effect is the assets do not have to go through a complicated probateyou just dispose of the assets pursuant to the Trust Charter.
• What about the priceless family heirlooms that you do not want put into a trust? For example family jewelry and picture albums?

This is where the memorandum comes into play.

Sometimes in a will you may see a clause like this:

“Pursuant to Florida Statutes §732.515, I request that the beneficiaries of my estate and my Personal Representative honor the provisions of any memorandum or written statement by me (which is not to be part of this LAST WILL AND TESTATEMENT) directing the disposition of any portion of my tangible personal property.   If more than one otherwise effective writing or memorandum exists, then, to the extent of any conflict among the writings, or memoranda, the provisions of the most recent writing or memorandum revoke the inconsistent provisions of each prior writing or memorandum.”

• These memorandum can take care of tangible personal property that may have ben directed into the trust.
• Think about it, what good are the family heirlooms sitting in trust? They are meant to be enjoyed.

This is not to say that you should be using this section of Florida law as a substitute for a will IT IS NOT. Just in case that was not clear let me say it again THESE ARE NOT WILL SUBSTITUTES but they are a good will supplement.

Considering using  a pour over will? Well consider how that process works, and think about who is going to serve as trustee. If you want tangible personal property to be in someone else’s hands you may want to include an informal memorandum under this section.

Do you have to do this? Why not specify more clearly in the Will? You can, that is always a good idea too. The reason this section is so useful is:

1. You do not need a lawyer to draft these
2. They do not need to be witnessed
3. These are easy to change and even better your Palm Beach Probate Attorney cannot bill you for the amendments!