Two of the most common types of estate planning documents is a will and revocable trust. A will controls the probate process and the division of assets. A revocable trust, on the other hand, is often chosen to skip probate. Usually, people have one or the other, depending on their needs and preferences.
For those who already have a revocable trust, they may be advised by their lawyers to have a will. And it leads to the question of why they would need one, considering that they already have an estate plan, i.e. a revocable trust, where the assets of the trust will be divided and transferred to the trust beneficiaries immediately upon their death.
The greatest strength of a revocable trust is that anything that ends up in it does not need a judge to be distributed. However, it also has a weakness. Anything that doesn’t end up in it is still subject to probate. You have to proactively get your assets in your trust.
So if a person has a revocable trust and they buy another house, they need another real estate document to get the house in the trust. If they don’t, it won’t be in the trust, nor will it be controlled by the family agreement. Hence, probate will be required to distribute it.
In instances like this, it’s highly beneficial to have a backup will, also known as the pour-over will.
In case something goes wrong in the revocable trust estate, as when one or two of the deceased’s assets are not in the trust, probate has to be undertaken to settle the division of those properties.
A backup or pour-over will can control probate and give instructions as to how those assets should be divided. It pours over the things that are not in the trust. This way, the estate plan is still effective. With a pour-over will, the benefits of the trust can still be reaped. The assets in the trust will still be divided as usual. But the protection of the pour-over will is there to indicate what happens to the other assets that are not in the trust and to control probate.
This is the reason why lawyers would still recommend a will even if a person already has a revocable trust.