What Is a Pour-Over Will in Michigan?
General information only, not legal advice. See the disclosure at the end.
If you're reading about living trusts in Michigan, you'll probably run into the term pour-over will. It's a will written to work alongside a trust. Here's what it does, what it doesn't do, and how Michigan law treats it.
What a pour-over will does
A pour-over will says, in effect: "Anything I own at death that isn't already in my trust, or doesn't pass some other way, goes to the trustee of my trust." The property "pours over" into the trust and is then handled under the trust's terms.
Michigan specifically allows this. Under MCL 700.2511, a will can leave property to the trustee of a trust that was set up during the person's lifetime, or to a trust identified in the will whose terms are in a separate written document. A few points from that statute:
- The gift isn't invalid just because the trust can be amended or revoked.
- Property that pours over becomes part of the trust and follows the trust's terms, including amendments made before or after death.
- If the trust is revoked or ends before death, the gift generally lapses unless the will says otherwise.
Does a pour-over will avoid probate?
Not by itself. This is the most common misunderstanding. A pour-over will is still a will, and property passing under a will generally has to go through Michigan's probate process, or a small-estate procedure if the estate qualifies, before it reaches the trust.
A living trust may help avoid probate for assets that are already titled in the trust's name or that pass by beneficiary designation. A pour-over will can act as a backstop for things that were missed: a car bought late in life, an account never retitled, or an inheritance received shortly before death.
So the more carefully a trust is funded during life, the less may need to pour over through probate. But no document can promise that probate will be avoided entirely.
Do you need a pour-over will if you have a living trust?
That depends on your situation, and it's a question for you (and, if needed, your attorney), not a blog post. It helps to know why many trust-based plans include one:
- A catch-all. Without a will, assets outside the trust pass under Michigan's intestacy rules, which may not match the trust's plan.
- Naming a personal representative. A will can nominate the person who would handle any probate estate.
- Guardian nomination. Parents of minor children can use a will to name a guardian.
- One set of instructions. Pouring leftover assets into the trust keeps distributions under one document.
Michigan signing requirements for a will
A pour-over will follows the same signing rules as any Michigan will. Under MCL 700.2501, the person making the will must be at least 18 and have sufficient mental capacity. Under MCL 700.2502, a typical witnessed will must be:
- In writing
- Signed by the will-maker (or by someone else in their conscious presence and at their direction)
- Signed by at least two witnesses, each within a reasonable time after seeing the signing or the will-maker's acknowledgment of the signature or will
Michigan also recognizes handwritten (holographic) wills that are dated, with the signature and important parts in the will-maker's handwriting. Under MCL 700.2505, signing by an interested witness doesn't by itself invalidate a will. Still, many people choose witnesses who don't inherit to reduce the risk of later disputes.
Self-proving: sworn statement vs. unsworn declaration
A "self-proved" will includes a statement from the will-maker and witnesses about how the will was signed, which can make it easier to prove in probate later. MCL 700.2504 offers two routes:
- Sworn statements made before an officer authorized to administer oaths, such as a notary public, using the statutory form
- An unsworn written statement signed by the will-maker and witnesses, dated, that begins with language substantially like: "I certify (or declare) under penalty for perjury under the law of the state of Michigan that..."
Either can be used when the will is signed. An existing witnessed will can also be made self-proved later.
When to talk with a Michigan attorney
Consider a licensed Michigan attorney if you have a blended family, want to leave someone out, have a beneficiary with a disability, own a business or property in another state, face estate tax questions, expect a family dispute, or have any doubt about capacity.
Our Michigan pour-over will template
Our Michigan Pour-Over Will Template is a self-help Word and PDF template designed to accompany a revocable living trust. You can also browse our Michigan legal document kits.
FAQ
Is a pour-over will the same as a regular will? It's a type of will. The difference is that its main gift goes to the trustee of your trust instead of directly to individuals.
Does a Michigan will need to be notarized? MCL 700.2502 calls for two witnesses on a typical will, not a notary. A notary usually comes in only if you use the sworn-statement method to make the will self-proved, and Michigan also offers an unsworn alternative.
What happens if my trust is revoked? Under MCL 700.2511, the pour-over gift generally lapses if the trust is revoked or terminated before death, unless the will provides otherwise.
Disclosure: Rexford Mercantile is not a law firm and is not a substitute for a lawyer. This article is general information, not legal advice, and it may not reflect the most recent changes in Michigan law. We sell self-help document templates. For advice about your situation, talk with a licensed Michigan attorney.