A pour-over will is a type of will that leaves your assets to the trustee of a trust when you pass away. Pour-over wills can be used to transfer property into a trust you created during your lifetime, known as a living trust or inter vivos (Latin for “while alive”) trust. A pour-over will can also leave your assets to a trust that will be created upon your death, which is called a testamentary trust. Regardless of the type of trust you are using, the pour-over will must indicate which assets will be moved into the trust.
While pour-over wills are still required to go through probate, there are several benefits to using a pour-over will and a trust instead of simply distributing assets through a will. First, a trust allows you to have control over not only who receives what, but also how and when they can use it. For example, parents can direct that a specific portion of the inheritance be used for a child’s education or limit the amount of money they can access each year. While a will simply distributes property to its proper recipient, trusts enable you to leave specific instructions that must be followed.
Using a pour-over will and a trust also helps simplify your estate plan by including all of the substantive distributions in a single document; the trust. Additionally, trusts are not a matter of public record, while wills that go through probate are. With a pour-over will and a trust, the only thing that becomes part of the public record is that your property was left to the trust. This keeps the extent of your estate and the details of your beneficiaries’ inheritance private.
Can I contest a pour-over will?
Yes, a pour-over will can be contested like any other will.
Under Florida law, anyone who is regarded as an interested person can contest the validity of a will. The definition of an “interested person” is construed broadly, but can often include:
- The personal representative of the estate
- The trustee of the inter vivos or testamentary trust
- Beneficiaries of the trust
- The estate’s creditors
- The deceased’s legal heirs
In order to challenge the validity of the will, you will need a legal basis to do so. Florida law recognizes various types of will contests, which are detailed below.
The Person Making the Will Did Not Have Testamentary Capacity
For a will to be legally binding, the person making it must have what is called “testamentary capacity.” This means they must be “of sound mind,” which is defined as having the mental capacity to appreciate the nature and extent of their property, the people who will inherit their estate, and the fact that they are creating a will. If the deceased did not have the requisite testamentary capacity at the time the will was executed, an interested party could contest the will on these grounds.
The Will Was Improperly Executed
A will can also be challenged as legally invalid if it does not comply with the specifications and formalities required by Florida law. These criteria include the following:
- The will must be in writing.
- The will must be signed by the person creating the will in the presence of two witnesses.
- Two witnesses must sign the will in the presence of each other and the person creating the will.
The Will Was Created as a Result of Fraud or Undue Influence
Interested parties may also contest a will that was created as a result of fraud or undue influence. For a fraud claim to succeed, the person contesting the will must be able to show that the deceased made or changed their will because of fraudulent misrepresentations made by a beneficiary. Fraud can also occur at the time the will is executed if a third party represents the will as another document or claims it would not be legally binding.
Similarly, an undue influence claim asserts that the person making the will did not do so of their own free will because another person exercised improper influence over them and manipulated them to changing or making a will. Undue influence generally involves someone the deceased trusted or relied on, such as a relative, close friend, caretaker, or mentor.
To successfully invalidate a will for undue influence, the person contesting the will must be able to show the following:
- The deceased and the influencer had a confidential relationship.
- The influencer is a substantial beneficiary of the estate.
- The influencer played an active role in obtaining the will.
If these three factors are present, the court will presume that undue influence occurred, and the estate will have to prove that there was no undue influence for the will to be found valid.
When should I contact a probate attorney
If you would like to contest a pour over will that you think is legally invalid, you should contact a probate attorney immediately. Overturning a will is a challenging process, even for a simple pour over will. For this reason, you will have much greater odds of succeeding if you work with an experienced probate litigation lawyer to handle the will contest.
Have questions? We’re happy to discuss.
Call (786) 761-8333 or email [email protected]
About RMO Lawyers, LLP
About RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (786) 761-8333 or visit: https://rmolawyers.com