Also known as: pour over devise · pourover devise
Written by attorneys — see sources below.
A testamentary provision in a will that directs property at death into an inter vivos trust. The trust may already hold assets or may receive its initial funding from the will itself, provided the trust terms appear in a written instrument executed during the testator's lifetime. Validation occurs by statute, incorporation by reference, or independent significance.
Pearl Porter executed a written trust instrument naming her niece as trustee and setting out rules for managing a family farm. She never transferred any assets into the trust during life. In her later will Pearl directed all farm equipment and accounts to pour over to the trustee of that same trust. After Pearl's death the court upheld the devise because the trust instrument had existed independently before the will was signed.
Patrick Phan signed a revocable trust instrument to hold interests in several energy projects and later executed a will pouring his LLC membership interests into that trust. After the will Patrick amended the trust's management provisions without republishing the will. At Patrick's death the court allowed the poured-over interests to enter the trust and be administered under the amended terms because the trust had an independent commercial purpose apart from the will.
Clara A. Mayo died in November 1981 at age fifty while employed as a psychology professor at Boston University. She had married James P. Mayo, Jr. in 1953 and the couple had no children, and her sole heirs at law were her parents, Joseph A. and Maria Weiss. In 1963 she executed a will naming Mayo principal beneficiary, and in 1964 and 1965 she named him beneficiary of her group annuity contract and Boston University retirement annuity contracts. Following a $300,000 gift from the Weisses in 1971, the Mayos executed new wills and indentures of trust on February 2, 1973. The decedent's trust named herself and John P. Hill as trustees, retained her power to amend or revoke, and divided the trust estate into Trust A, a marital deduction trust for Mayo, and Trust B, which provided a life interest for Mayo followed by benefits for the donor's nephews and nieces and remainder gifts to Clark University and Boston University. On the same day she changed the beneficiary of her Boston University group life insurance policy to the trustees, and one month later changed her retirement annuity contracts to name the trustees as beneficiaries. The trust received no funding at creation and its future assets were to consist solely of the insurance proceeds, annuity benefits, and the pour-over from the will's residuary clause. Mayo moved out of the marital home in 1975. In June 1977 the decedent changed the life insurance beneficiary to Marianne LaFrance, who had lived with the Mayos since 1972 and shared a close friendship with the decedent. Mayo filed for divorce in New Hampshire on September 9, 1977. The divorce was decreed on January 3, 1978 and incorporated a permanent stipulation in which Mayo waived any right, title or interest in the decedent's securities, savings accounts, savings certificates, retirement fund, furniture, furnishings and art. Mayo remarried on August 28, 1978 and later executed a new will favoring his second wife. The decedent died on November 21, 1981. Her will was allowed on November 18, 1982 and John H. Clymer was appointed administrator with the will annexed. The Weisses also appeal the judge’s November 16, 1983, dismissal of their petition to remove Clymer as administrator.
View caseNo. A pour-over devise remains valid when the trust instrument was executed during the testator's lifetime even if the trust held no assets until death. The will itself supplies the initial funding.
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The devise lapses. Once the trust no longer exists at the testator's death there is no receptacle for the property and the assets pass by intestacy or residuary clause unless the will provides otherwise.
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Yes. Under the governing statute the poured-over property is administered according to the trust terms as amended before or after the testator's death unless the will directs otherwise.
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Validation occurs through incorporation by reference when the trust instrument existed at will execution or through independent significance when the trust had a purpose separate from receiving probate assets.
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