Do you need a will if you have a trust?
This is an excellent question, and it shows up a lot in my office, particularly because when we’re talking about trusts, people assume that they don’t need a will and don’t understand why I’m recommending both.
I’m attorney Sarah Siedentopf. I’m an estate planning and probate attorney in Atlanta, Georgia. And you may have just guessed, my answer is yes, you need a will, even if you have a trust. One of the first reasons is that only a will can designate the guardian for your children. So we can’t put that in a trust, it won’t be effective. But maybe you don’t have minor children and so you think, okay, trust only, got it. You still need, what’s called, a pour-over will. And this basically says if anything got left out of my trust, run it through probate as quickly as possible and dump it into my trust. And so, more or less, all it does is tell the court who it is that you want to be in charge.
Obviously, if you have children, you’re going to designate the guardian in that will. But in general, this a very, very short document because all of your instructions are in that trust. When would this come into play? The goal for pour-over wills is that we never need them. They do not get probated because there is nothing to probate. The goal is that we got it all into the trust during your lifetime and nobody has to mess around with probate at all. Sometimes that doesn’t happen. And sometimes that’s because you moved, bought a new house, something like that, we didn’t transfer it into the trust, and you’re thinking well, I will stay on top of this, I do not need a will, I’m getting this handled.
But there are also situations where things arise after you’ve passed away, such as insurance settlements for wrongful death claims, things like that that might belong to your estate and suddenly there is money in your estate that is not in your trust, and we have to go through probate for it. So it is always good to have a pour over-will, even if you have a trust, because if you don’t need it, you don’t need it, and that’s awesome. But if you need it, it helps things move more quickly through probate and your family will appreciate it. If you have more questions about wills and trusts, I’m always happy to talk. And please, I also welcome your comments. Thank you.
