Also known as:pour-over devise · pour over devise · pour over devises · pour-over will · pour-over trust
Written by attorneys · grounded in primary & secondary sources — see below
A provision in a will that adds property to an inter vivos trust or funds a trust that was not funded during the testator's lifetime but whose terms are set out in a trust instrument executed during the testator's lifetime. The devise may be validated by statute, by incorporation by reference, or by independent significance.
Sources & Authorities
How it applies
Common Examples
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Will Funds Unfunded Clinic Trust
Phuong Pham executed a will directing her medical practice accounts receivable to pour over into a clinic succession trust. Years earlier she had signed the trust instrument naming a trustee and setting detailed operational terms, but she transferred no assets to the trust during life. After her death the trustee claims the assets under the pour-over clause while her disinherited child argues the unfunded trust cannot receive them. The clause operates to transfer the assets because the signed lifetime instrument supplies the required terms.
Revoked Trust Causes Lapse
Pablo Perez executed a will pouring his startup shares over to a named trustee of an inter vivos trust he had created years earlier. One month before death he revoked the trust in writing and the will contained no alternate disposition. At death the shares remained in his name. The pour-over devise lapses because the referenced trust no longer exists, so the shares pass by intestacy to his heirs.
Put it into practice
Test Yourself
10
Practice Questions5
· 8 sources
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Nelson v. Nelson205 P.3d 715 (Kan. 2009)
Common questions
Frequently Asked
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Does a pour-over devise fail if the referenced trust was never funded during the testator's lifetime?+
No. A pour-over devise remains valid when the trust instrument was executed during the testator's lifetime and supplies definite terms even if the trust held no assets before death. The will itself supplies the initial funding at death.
Supporting sources
What happens to a pour-over devise if the testator revokes the referenced trust before death?+
The devise lapses. Once the trust no longer exists at death there is no receptacle for the assets and the will contains no alternate disposition, so the property passes by intestacy.
Supporting sources
Can post-execution amendments to the trust govern assets received by a pour-over devise?+
Yes. Unless the will directs otherwise the poured-over property joins the trust and is administered under its terms including amendments made before or after the testator's death.
Supporting sources
When may a pour-over devise be validated by independent significance rather than statute?+
Independent significance validates the devise when the trust document has a purpose apart from the will such as serving as an employee benefits booklet or grant proposal executed before the will.
Supporting sources
Trusts and Estates Decedents EstatesWills · Will contestsUBEIntermediate