Generally speaking, estate property identified in a will must go through probate before it is transferred to beneficiaries. Probate means court administration and the details of a will becoming a matter of public record.
Unlike a will, a trust does not have to go through probate because property titled in the trust is not considered part of the estate. However, any property that is not specifically titled in the trust will not be subject to that exemption.
Typically, a grantor who has set up trusts will transfer the bulk of his or her assets into those estate-planning instruments. For individuals who want to retain control over select assets, a revocable trust may be preferred. Yet even in that instance, property titled in the trust must be specifically enumerated.
How then does an individual plan for property that may be unaccounted for at the time of his or her passing? A pour-over will can be created to specifically transfer any remaining property into a trust at the time of the grantor’s passing. However, it will have to go through probate, which means that the property within its scope may become a matter of public record.
An attorney that focuses on estate planning might recommend this option more as a safety measure against possible oversights, as it is possible to transfer most — if not all — of an individual’s assets into revocable or irrevocable trusts. With periodic updating, it may be possible to identify most of an individual’s estate and transfer assets into existing trusts, preserving a pour-over will simply as a catch-all measure.
Source: CNBC, “Trust bust: Steer clear of the 8 biggest estate-planning mistakes,” Barry Glassman, Oct. 22, 2014
