Free Pour-Over Will

It is recommended that you select an alternate guardian who will serve if your first choice is unavailable or unwilling to serve. Your choice of guardian is very important. If your first choice cannot serve and you fail to select an alternate, your survivors and the court system will be left to make the decision for you.

You may name an Alternate to serve alone or name alternate co-guardians to serve together.

You may wish to require a bond on your Executor or Trustee. A bond is similar to an insurance policy in that it covers against losses from misappropriation of assets by the Executor or Trustee.

You may wish to check with a lawyer regarding the usual practice in your state and the risks of not requiring a bond. Because an Executor or Trustee might occasionally misappropriate assets--either through theft or error--most states require that they obtain a bond before they are given authority to act as an Executor or Trustee, UNLESS you state in your Will that no bond is required.

Note: These bonds are also known as Fiduciary bonds. A fiduciary is a person or organization who is given the authority and responsibility over assets which are not owned by that fiduciary. For example, an Executor carries out the terms of a will and a Trustee carries out the terms of a trust.

A guardian is the person that you nominate in a Will to have custody of your minor children, if neither parent is available. The guardian has physical control over the minor children, including the responsibility to provide physical care, health care, education, and general welfare.

The responsibilities of the guardian do not include control of finances for the children. If your planning includes a children's trust, your trustee will have the responsibility to invest the assets of the trust and make payments to the guardian for the care of your children. You can choose the same person(s) to be the guardian and trustee.

Naming a person as guardian in a Will is merely a nomination, not the actual appointment. Only the court can appoint a guardian. As expected, the court usually accepts the nomination specified in the Will, but it is possible that interested family members or others may challenge the appointment. In that case the court will listen to both sides before making a decision whether to appoint the person nominated in the Will or a person suggested by others. The court will appoint the person nominated in the Will unless it finds compelling reasons not to do so. The court is concerned primarily with the best interests of the children.

If you are not married to your minor child's other parent, it is important to understand that your selection of a guardian does not give your guardian priority over the other parent if you die. In most cases, the other parent will have rights as a natural guardian that will take priority over your selection.

If an individual will be selected as the Executor, that person should be a resident of the same state as the Will writer since some states disqualify nonresident individuals.

The Executor's responsibilities are significant. Therefore, the person or entity should be trustworthy and capable of handling financial matters. A business background may be helpful, but certainly is not required.

If the Executor will be working with a capable lawyer, the Executor's responsibilities will be much easier to handle. Many banks have trust operations that provide executor services, but of course, the bank will charge for its services. Executor fees can range from 1-2 percent in some states to as much as 4-5 percent in other locations. Frequently, a spouse or adult child is named as an executor, and in such cases, the Executor may "waive" or refuse to accept a fee for services.

An "Executor" or "Personal Representative" is the person or organization named in a Will who has the responsibility of carrying out the terms of the Will. Those responsibilities are to collect your assets, pay the debts and expenses of the estate, and distribute the remaining assets to the beneficiaries.

Some states use the term "Personal Representative," rather than "Executor," but generally, either term is acceptable. If you have no preference, use the term "Executor."

Some states have adopted laws which allow the Executor to administer your estate with a minimum of court supervision, if the circumstances of the estate appear to be simple.

States describe this method using various terms, such as "informal," "unsupervised," or "independent." Usually, if problems arise under these less formal methods, there are legal procedures available by which objecting parties can force the estate to revert to more formal methods.

By providing the Executor with the discretion to use less formal methods (where available), you may be able to minimize unnecessary expense and delay in the administration of your estate. However, you must balance these potential savings against the increased possibility of errors or even intentional misconduct by the Executor which could occur due to the reduced court oversight.

If you have any questions about whether your state allows informal administration, or whether you should authorize your Executor to adopt informal administration, a lawyer should be consulted.

A Pour-Over Will is a specialized will that is used as a supplementary document to the Living Trust or Joint Living Trust. Its primary function is to "Pour Over" the Will writer's remaining assets (at the Will writer's death) into the Will writer's Living Trust or Joint Living Trust. Often a Living Trust is established to avoid "probate" of a will, but if any assets were not transferred into the trust �by design or by inadvertence, a pour-over will serves as a safety net to convey those assets into the Living Trust so that they can be distributed with the Will writer's other assets. Note: If a Joint Living Trust has been created, each joint Grantor should prepare a Pour-Over Will.

A Pour-Over Will includes a standard provision that provides for an Executor (Personal Representative in some states). It also includes an optional provision to select a Guardian, if the Will writer has minor children.

Instead of the usual provisions that provide for the distribution of specific bequests, tangible personal property, and the residuary estate, the Pour-Over Will simply distributes the Will writer's remaining assets to his or her Living Trust. The Living Trust then distributes that property, plus the Trust assets, in accordance with the distribution provisions (specific bequests, etc.) of the Living Trust.

The Pour-Over Will should be signed with the same formalities as any other Will.

1. This Pour-Over Will should only be used in connection with a Living Trust or a Joint Living Trust. The appropriate Trust and the Pour-Over Will should be signed at the same time.

2. This Will does not dispose of property which passes on the death of the Will writer to a person by operation of law or by any contract. For example, the Will does not dispose of joint tenancy assets or the Will writer's spouse's share of community property, and it does not normally apply to proceeds of life insurance on the Will writer's life or to the Will writer's retirement plan benefits.

3. This Will is not designed to reduce taxes. The tax results of the choices made in this Will should be discussed with a competent tax advisor.

4. The Pour-Over Will is not valid unless it is signed by a Will writer who is of "sound mind" and of the minimum age for this state. In most states, the minimum age is eighteen. Some states permit an individual below the minimum age to sign a will if the person is married or in the military. Being of "sound mind" requires that the Will writer: (a) know that he or she is signing a will, (b) know the general nature and extent of his or her property, and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate.

5. If the Will writer is unable to sign due to physical disability, another person may be able to sign on behalf of the Will writer, in the Will writer's presence, and at the express direction of the Will writer. If there are any questions regarding the possibility of someone signing on behalf of the Will writer, a lawyer should be contacted.

6. The Pour-Over Will should be signed by the Will writer in the presence of three DISINTERESTED adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Will. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the will is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.

7. All of the witnesses must watch the Will writer sign this Will. The Will writer should verbally declare that the document is intended to be his or her Last Will and Testament, but the witnesses need not read the Will or know of its contents.

8. Each witness must sign his or her name with the Will writer and the other witnesses present. The witnesses should be satisfied that the Will writer willingly signed the document as his or her free and voluntary act, and that the Will writer was of full age and sound mind.

9. The Will writer should initial on the bottom margin of each page of the Will. This is done to prevent the later substitution of pages.

10. The self-proving affidavit ("Proof of Will" in some states) is a document which should be attached to the end of the Will, and which contains the Will writer's acknowledgment and the affidavit of the witnesses, made before a person authorized to take acknowledgments and administer oaths. The affidavit recites that the requisite formalities were observed in signing the Will. Although attaching the affidavit has nothing to do with the legality of the Will itself, it can speed the admission of the Will to probate after the death of the Will writer because it eliminates the need to have a witness appear at the probate proceeding to testify that the formalities in signing the Will were followed. The witnesses may not be available later when they are needed. A self-proved Will may be admitted to probate without additional witnesses or affidavits, but it is still subject to contest on such grounds as undue influence, lack of testamentary capacity, or prior revocation. In most cases, this affidavit should be signed and attached to the end of the Will. Some states do not recognize the self-proving option. Therefore, the affidavit will be of no use in those states. However, including the affidavit in those states will not invalidate the Will.

11. The date should be filled in wherever requested, using the date on which the actual signing takes place. This step could become essential to the validity of the Will (for example, if this Will revokes an earlier will).

12. The number of total pages in the Will should be indicated, including the page(s) on which the witness signature lines appear. The page with the affidavit, if included, should not be counted because the affidavit is not a part of the Will itself.

13. The original of the Will should be kept in a secure location such as a safe deposit box at a bank, because only the signed original can be probated. A second copy could be kept in the Will writer's home files. The Will writer may wish to provide a copy to his or her lawyer, or possibly to the person named as Executor. However, before distributing such copies, the Will writer should consider that it may become awkward to retrieve them later, should the Will writer decide to modify the Will and/or change the designation of Executor.

14. In most states, the Will cannot be changed by adding, deleting, or modifying words on the face of the Will. Such changes are usually disregarded. When changes are desired, it is recommended that the Will be revoked by signing a new Will which expressly revokes the former Will.

A sole Executor serves alone. Alternatively, you can nominate any number of persons and/or organizations to serve together as Co-Executors. All actions taken by Co-Executors must be unanimous. Therefore, difficulties and/or delays are sometimes encountered if:

1. the Co-Executors reside some distance away from each other and documents to be signed must therefore be circulated among them, or
   
2. the Co-Executors are unable to unanimously agree on some course of action.

Also, an attractive combination of Co-Executors is a bank trust department and a family member; the bank can assume responsibility for all of the court documents, tax returns, asset management functions, and transfer documents, while the family-member Executor can provide useful insight about the beneficiaries for purposes of distributions. (This consideration may not be necessary in the case of a Pour-Over Will because of the very limited function of the Executors.)

Finally, some states require (or at least prefer) that at least one Executor be a resident of your state or else be bonded. Therefore, in order to allow an out-of-state Executor, who is your primary choice, to serve without bond, you may want to add a Co-Executor who is a resident of your state to serve .

A sole guardian serves alone. Alternatively, you can nominate two or more persons to serve together as co-guardians. Decisions of co-guardians need to be unanimous and the co-guardians need to work together. Therefore, co-guardians are usually nominated only when the co-guardians are married to each other or when the co-guardians live together and each has an important relationship to the child(ren) (for example, two sisters who live together).

If you are inclined to name a married couple as co-guardians, consider your knowledge regarding the stability of the marriage and whether you would want both to serve if they were separated or divorced. You may prefer to name just one of the couple as your sole guardian. For example, if you are considering selecting your sister and her husband as co-guardians, maybe you want to choose just your sister as sole guardian.

Most Will writers decide to waive (not require) a bond because:

1. the Executor or Trustee chosen is trusted, and
   
2. because bonds:
   1. are expensive,
      
   2. are usually not necessary if a bank is the Executor or Trustee because most banks are already bonded, and
      
   3. require greater court involvement in some states because the court must ensure that the bond is handled properly.

The Pour-Over Will should be signed by the Will writer in the presence of three DISINTERESTED adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason.

For example, a person should not be a witness if that person is a beneficiary under the Will. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the will is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.