Can you have both a living trust and a will?

If you make a living trust, you might well think that you don't need to also make a will. After all, a living trust basically serves the same purpose as a will: it's a legal document in which you leave your property to whomever you choose.But even if you make a living trust, you should make a will as well.

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Mississippi Last Will and Testament with All Property to Trust called...

Mississippi Last Will and Testament with All Property to Trust called a Pour Over Will

Category:

Wills - Pour Over to Trust

State:

Mississippi

Control #:

MS-WIL-01900

Format:

Instant download

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Description

This Legal Last Will and Testament Form with Instructions, called a Pour Over Will, leaves all property that has not already been conveyed to your trust, to your trust. This form is for people who are establishing, or have established, a Living Trust. A living trust is a trust established during a person's lifetime in which a person's assets and property are placed within the trust, usually for the purpose of estate planning. A "pour-over" will allows a testator to set up a trust prior to his death, and provide in his will that his assets (in whole or in part) will "pour over" into that already-existing trust at the time of his death.

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FAQ

Both are useful estate planning devices that serve different purposes, and both can work together to create a complete estate plan. One main difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it.

One main difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it. A will is a document that directs who will receive your property at your death and it appoints a legal representative to carry out your wishes.

If you make a living trust, you might well think that you don't need to also make a will. After all, a living trust basically serves the same purpose as a will: it's a legal document in which you leave your property to whomever you choose.But even if you make a living trust, you should make a will as well.

When people make revocable living trusts to avoid probate, it's common for them to also make what's called a "pour-over will." The will directs that if any property passes through the will at the person's death, it should be transferred to (poured into) the trust, and then distributed to the beneficiaries of the trust.

A will and a trust are separate legal documents that typically share a common goal of facilitating a unified estate plan.Since revocable trusts become operative before the will takes effect at death, the trust takes precedence over the will, when there are discrepancies between the two.

A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estate at the time of his or her death shall be distributed to the Trustee of the trust.

Pour-over wills are subject to probate since the assets have not yet been transferred into the trust. Some states also require your assets to go through the probate process any time your assets or property are over a certain value.Even though pour-over wills don't avoid probate, there is still a measure of privacy.

After reading about the benefits of a revocable living trust, you may wonder, Why do I need a pour-over will if I have a living trust? A pour-over will is necessary in the event that you do not fully or properly fund your trust.Your trust agreement can only control the assets that the trust owns.

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Last Will and Testament with All Property to Trust called a Pour Over Will

Uniform Testamentary Additions to Trusts Act (UTATA)

The Uniform Testamentary Additions to Trusts Act has been adopted in at least 44 States. The purpose of the Act is to allow "pour-over" wills, which allow a testator to set up a trust prior to his death, and provide in his will that his assets (in whole or in part) will "pour over" into that already-existing trust at the time of this death. Unless there is statutory authority, such as the adoption of the UTATA, permitting the assets which are attempted to be "poured over" in this manner, they are considered part of the testator's estate, and are administered along with the rest of his estate.

However, a statutory pour-over will allows assets are not part of the probate estate for purposes of administration: to be poured over into the previously-established trust, and are administered and disposed of according to the terms of that previously-established trust rather than by the terms of the testator's will.

The following is the 1991 version of the UTATA, which has been adopted in some form by many states:

SECTION 1. TESTAMENTARY ADDITIONS TO TRUSTS.

(a) A will may validly devise or bequeath property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

(b) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

SECTION 2. EFFECT ON EXISTING WILLS. This [Act] applies to a will of a testator who dies after the effective date of this [Act].

SECTION 3. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This [Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among states enacting it.

SECTION 4. SHORT TITLE. This [Act] may be cited as the Uniform Testamentary Additions to Trusts Act (1991).

SECTION 5. SEVERABILITY CLAUSE. If any provision of this [Act] or its application is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end provisions of this [Act] are severable.

SECTION 6. REPEAL. The following acts and parts of acts are repealed:

(a)

(b)

(c)

SECTION 7. EFFECTIVE DATE. This [Act] takes effect _________________________.

Last Will and Testament with All Property to Trust called a Pour Over Will

Uniform Testamentary Additions to Trusts Act (UTATA)

The following is the 1991 version of the UTATA, which has been adopted in some form by many states:

SECTION 1. TESTAMENTARY ADDITIONS TO TRUSTS.

(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

SECTION 2. EFFECT ON EXISTING WILLS. This [Act] applies to a will of a testator who dies after the effective date of this [Act].

SECTION 4. SHORT TITLE. This [Act] may be cited as the Uniform Testamentary Additions to Trusts Act (1991).

SECTION 6. REPEAL. The following acts and parts of acts are repealed:

(a)

(b)

(c)

SECTION 7. EFFECTIVE DATE. This [Act] takes effect _________________________.

Mississippi Last Will and Testament with All Property to Trust called a Pour Over Will

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