Florida Probate Litigation: What is a Pour Over Will?

What is a pour over will ? Should I speak with a Florida trust and estates lawyer to create one? What do I do if my mom has passed away leaving a pour over will?  These are all good questions.  For a more current commentary on pour over wills, click HERE.  But many heirs and family members also want to know about contesting a Florida will.

Probate attorneys know that Florida law allows the creation of pour over wills. In a pour over will, the testator’s will “pours over” into a trust. Why is this useful? Many times, people will create trusts but never fund them. In probate litigation cases, a trust MAY  fail if it is not funded or operated properly.  However, most Florida estate lawyers will want you to set up a trust when you are executing your Florida will.  Talk to your estate planning attorney about whether a revocable trust is right for you.  A pour over will works in tandem with a revocable trust. Usually, the testator will set up a trust with one dollar or some nominal amount . They will often name themselves as the trustee. The testator then executes a will that leaves all of their property to that trust. If you fund the trust during life, you can minimize or eliminate a Florida Probate process.  Otherwise, when one dies, the “estate” assets “go” to the trustee of the trust. Those assets and trust money will be distributed by the trustee according to the terms of the trust document.

To read all about Florida Probate Law, start with the Florida Probate Code.  Then, to learn what makes a valid Florida will, focus on Chapter 732, Part V. 

What elements must be satisfied for a valid pour over will to be executed in Florida? First, the trust must be created before or at the same time as the execution of your Florida will. In addition, the trust must be identified in your will.  In other words, your will must refer to the pour over trust. Lastly, the trust terms must be set out in the written trust document.