Pour-over will

Also called: Testamentary addition to a trust.

Where the statute uses it: Minn. Stat. § 524.2-511

What it means

“Pour-over will” is the drafting name. Minnesota’s statute calls it a testamentary addition to a trust, and § 524.2-511 spends its first paragraph disposing of objections: that the trust was unfunded, that it was amendable, that it was amended after the will was signed or after the testator died.

The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

Paragraph (a) requires two things of the trust: that it be identified in the testator’s will, and that its terms be set forth in a written instrument other than a will — or in another individual’s will, where that individual predeceased the testator. The trust may be established before the will, at the same time, afterward, or at the testator’s death, and the corpus may be nothing at all: the paragraph says the devise works “regardless of the existence, size, or character of the corpus of the trust.”

Paragraph (c) supplies the failure mode. Unless the will provides otherwise, revoking or terminating the trust before the testator’s death causes the devise to lapse.

Where the word shows up

Alongside a revocable trust, in the same signing packet, as the backstop for assets never retitled to the trustee during life.

Backstop is the accurate word, and it is not the same as bypass. Property caught by a pour-over will is property passing under a will, and § 524.3-102 sets out what has to happen to that will first: except as provided in § 524.3-1201, a will must be declared valid by an order of informal probate by the registrar, or by an adjudication of probate by the court in a formal proceeding or in proceedings to determine descent, before it is effective to prove a transfer of property. The same section carves out an unprobated will, which may be admitted as evidence of a devise on the two conditions it states.

Section 524.2-511 controls where the property lands. It does not control how it gets there.