Santa Fe Pour Over Will Lawyer

A pour-over will works in conjunction with a living trust, ensuring that any assets left in your probated estate are funnelled directly into your trust. This acts as a safety net in case any key assets were left out of the trust. A pour-over will lawyer in Santa Fe can help you set up these arrangements, increasing the chance that they can go through seamlessly after your death.

For a pour-over will to work, the person creating their will (known as the “testator”) must first have a living trust in place. This trust should have a successor trustee in place, and all rules for distributions should be made clear before the testator’s death.

Many households use pour-over wills when they rely upon a living trust for the bulk of their estate planning arrangements. New Mexico Financial & Estate Planning Attorneys can help you ensure everything is in place, for this life and the next, so that your loved ones can benefit.

Find out more during a confidential consultation with no further obligation when you call (505) 503-1637 or contact us online to schedule an appointment today.

How Can a Santa Fe Pour-Over Will Attorney Help Me?

By working with a Santa Fe pour-over will attorney, you can ensure that everything goes through as planned. They can help you draft a will that includes specific, legally compliant, and enforceable language instructing your estate’s personal representative (i.e., your executor) to transfer the property into the trust you created.

Your lawyer can also review the details of your living trust to ensure that it can continue to fulfill its expected purposes, even after your death. Examples of services that can be provided by an experienced attorney include:

• Helping you draft and execute your will so that it can be admitted into probate and used to make the transfers into a trust as intended
• Creating instructions for your estate’s personal representative to ensure that they don’t have any issues or confusion when it comes time to transfer property
• Creating a living trust, if you don’t have one already, and structuring it to maximize its potential benefits in light of your unique finances, family situation, and end goals
• Helping you select a contingent, survivor trustee in case you don’t have one or your first choice is unable to serve
• Weighing your options for selecting a personal representative, including the pros and cons of naming the same person who is serving as the survivor trustee
• Reviewing the language, terms, and distribution requirements of your trust to ensure that they match your goals, account for possible risks, and can perform as expected in the future
• Evaluating the other components of your estate plan, including incapacity planning and beneficiary designations, and creating a cohesive strategy that reflects your objectives, values, and vision
• Updating your trust, pour-over will, and other estate planning components periodically to ensure they remain consistent with one another, compliant with recent law changes, and capable of producing the outcomes you want
• Representing your estate during probate, if needed, to support your personal representative, especially if they encounter issues with transferring estate property into your trust

New Mexico Financial & Estate Planning Attorneys can provide you with comprehensive and personalized services, guiding you through all stages of the process. Whether you need to create a living trust now or just want to ensure that a pour-over will matches the other strategies used in your estate plan, we are here to offer our guidance, knowledge, and experience.

Why Would I Need a Pour-Over Will if I Already Have a Trust?

When you have a living trust — or you plan to create one — creating a will is still highly recommended in all cases.

Without a will, any property remaining in your possession (rather than your trust’s) at the time of your death becomes intestate. Whoever handles your estate is then legally obligated to transfer it to your next-of-kin using the state’s laws for intestate succession.

To prevent this situation, you can include a provision in your will that leaves all of the estate’s “residue,” meaning anything left over after specific bequests, to an individual or organization of your choosing. This is called a “residuary clause,” and it is recommended in nearly every case, so as to avoid having any intestate property.

With a pour-over will, a living trust is the residuary beneficiary, meaning that all remaining property is absorbed into your trust. Your survivor trustee can then either distribute the funds to your chosen beneficiaries or, more commonly, retain the property and use it to generate income until the eventual distributions are made.

Other Benefits to Having a Pour-Over Will

In addition to acting as a funnel or net that “catches” any remaining probated estate assets, your pour-over will also serves two vital functions:

• Names someone to serve as your estate’s personal representative, meaning they have the authority to take possession and transfer any property held in your estate, rather than your living trust
• Names someone to serve as the guardian of any minor children or adult dependents in your care at the time of your death, if they have no other surviving parent or legal guardian available

Without a will, a court order is needed to appoint a personal representative or guardian. The court is obligated to select certain individuals as the personal representative, based on priority. Multiple individuals with equal priority may also come forward, which could lead to a dispute.

Worse, no one may come forward, which means that a creditor may be able to open up probate and access anything that remains in your estate (although they are legally obligated to obey the laws of intestate succession and to uphold the interests of the estate, in these cases).

As for a legal guardian of your minor children or an adult with special needs, the court always selects the most appropriate individual. However, in the case of minors, they often prioritize selecting the individual who took over their care after your death. If this individual is not the person you would have selected, then the court may lack the legal grounds needed to prioritize your first choice if you neglected to make a will.

So, because a pour-over will can catch any residue from your estate while nominating your choice of a personal representative and guardian, they are vital in nearly every case. Reach out to a Santa Fe wills lawyer to learn more about why the document is considered an essential part of estate planning.

How Can I Form a Living Trust If I Haven’t Already?

A pour-over will needs a living trust to work. While you have the option to create a testamentary trust from your estate property after your death using a provision of your will, these don’t serve an identical purpose. For one thing, property in a living trust bypasses probate, whereas property used to fund a testamentary trust does not.

With a living trust in place, your assets not only avoid probate, but they can also remain in the trust even after your death. Property passed down through a will must be immediately transferred after probate, by comparison.

How a Living Trust Works

Living trusts, like all other trusts, involve three different parties:

• A grantor, who forms the trust by transferring their property into its ownership
• A trustee, who manages the trust on behalf of the grantor and their beneficiaries
• Beneficiaries, who receive transfers from the trust, according to the rules set by the grantor

Most living trusts are also revocable. This allows the grantor to access the trust’s contents or alter the trust at any time after it has been created.

Common arrangements made for a typical living trust include:

• Two spouses are listed as co-grantors
• Grantors often serve as the trustees
• The grantors’ children and other loved ones are listed as the final beneficiaries
• A successor trustee is named, in case all other trustees are incapacitated or pass on

Your trust can reflect a different structure, based on your preferences. For example, you can create a living trust without your spouse, and you can name someone else, like a family member, as the trustee.

Importantly, a trust cannot legally function if the grantors are also the trustees and the sole beneficiaries. To avoid this situation, the grantors must list someone other than themselves as a beneficiary if they are also going to serve as a trustee.

How Can I Start a Living Trust in Santa Fe?

The legal framework of trusts is built from two major elements:

• A formational document, known as the trust instrument, which explains the rules of the trust, issues guidelines for trustees, lists beneficiaries, and determines when a distribution should take place
• Retitled property, which places the property into the ownership of the trustee, held in care of the trust

The trust instrument must be signed by all grantors and notarized for it to become effective. The trust also needs property contained within it before it is considered fully formed.

A Santa Fe estate planning lawyer can help you decide on the best arrangements and wording to use for your trust agreement. They can also assist you with selecting a trustee, crafting guidelines, and setting rules for distributions to beneficiaries. When it comes time to transfer assets into your living trust, they can facilitate the proper arrangements while offering guidance on which assets to include.

Using a Pour-Over Will: Two Common Trust Strategies

If a living trust has instructions to distribute all estate property to beneficiaries immediately after a grantor’s death, then a pour-over will might not be needed. However, pour-over wills are often used in situations where:

• There is a surviving spouse; and/or,
• The testator wants to preserve assets in the trust for an extended period

A/B Trust Strategy

When there is a surviving spouse, the spouse can inherit the remains of the estate while still having access to any assets that are held in the joint living trust. This approach, when coupled with a pour-over will, ensures a nearly unbroken continuity of asset management.

As a modified strategy, the surviving spouse can split off their share of assets into a new trust. Meanwhile, the deceased spouse’s assets are spun off into their own trust, which would include the residue of their estate added from the pour-over will.

This is referred to as an A/B trust strategy. The surviving spouse’s “A” trust can be used at their own discretion, while the deceased spouse’s “B” trust becomes irrevocable and holds assets for the couple’s children (or other selected heirs). For the remainder of the surviving spouse’s life, they may be able to draw income from the B trust, and they may have a “power of appointment” permitting them to withdraw principal assets from the trust for specific purposes.

With this type of estate plan, it makes sense for the deceased spouse to retain as much of their estate property in their existing trust as possible.

Multi-Generation Trust

In some cases, a decedent wants to leave money behind that can be enjoyed by multiple generations. The trust can grow in value over time thanks to the investments it holds. The income generated by the trust can be used to fund distributions to children, grandchildren, great-grandchildren, and other relatives.

These types of trusts can last as long as the rule against perpetuities allows in the state where it was formed. In New Mexico, this rule (NM Stat § 45-2-901) allows the trust to last for up to 90 years after it was formed.

The grantor can also list a charitable cause or an organization, like a university, as a beneficiary. This arrangement means that multiple generations can be supported, thanks to the grantor’s generous contributions.

Create Your Pour-Over Will in Santa Fe With an Experienced Attorney’s Help

New Mexico Financial & Estate Planning Attorneys can assist you with drafting and properly executing your pour-over will. Our guidance can also help you ensure that every part of your estate plan is focused on achieving your long-term goals.

With a pour-over will in place, the people and causes you cared about most can be provided for in the years — or even decades — to come. Get started with creating or updating your pour-over will in Santa Fe today when you call us at (505) 503-1637 or contact us online to schedule an appointment with an experienced attorney.