You created a revocable trust to avoid probate. So why did your attorney also give you a Will? That Will is a pour-over Will, designed to catch assets that are still in your individual name when you die and direct them into your trust. But there’s an important catch: those assets have to go through probate first. In this episode, Jill explains how pour-over Wills actually work, why creating a trust and funding a trust are two very different things, and how the way you own each individual asset determines whether it will avoid probate. The takeaway? If avoiding probate is your goal, don’t just ask, “Do I have a trust?” Ask, “What happens to each of my assets when I die?”
You created a revocable trust to avoid probate. So why did your attorney also give you a Will?
That Will is a pour-over Will, designed to catch assets that are still in your individual name when you die and direct them into your trust. But there’s an important catch: those assets have to go through probate first.
In this episode, Jill explains how pour-over Wills actually work, why creating a trust and funding a trust are two very different things, and how the way you own each individual asset determines whether it will avoid probate.
The takeaway? If avoiding probate is your goal, don’t just ask, “Do I have a trust?” Ask, “What happens to each of my assets when I die?”
What You’ll Learn in This Episode
Why you may still need a Will even if you have a revocable trust. A pour-over Will acts as a backup for probate assets that never made it into your trust.
Why a pour-over Will doesn’t avoid probate. It can direct an asset into your trust, but the asset first needs to pass through the probate process.
The difference between creating and funding a trust. Signing a trust agreement creates the legal structure. Funding the trust means actually transferring assets into that structure.
How a bank account can avoid probate. Depending on your circumstances and goals, you might retitle an account into your revocable trust or name the trust as a payable-on-death or transfer-on-death beneficiary.
Why those options aren’t necessarily interchangeable. Having an account owned by your trust during your lifetime may make it easier for a successor trustee to manage it if you become incapacitated. A payable-on-death designation doesn’t take effect until death.
What makes something a probate asset. An asset owned in your individual name at death with no surviving joint owner, beneficiary designation, POD/TOD designation, or other built-in method of transfer is a probate asset that needs probate to reach its next owner.
Why I think of probate as a bridge. Probate gets an asset from its deceased owner to its next owner. Your pour-over Will can tell us where the asset should go after it crosses that bridge, but it doesn’t eliminate the bridge.
Why one forgotten asset doesn’t necessarily mean your trust plan failed. A pour-over Will exists because financial lives change. You may open a new account, switch banks, or simply overlook something after creating and funding your trust.
What could happen without a pour-over Will. If an asset is subject to probate and you don’t have a Will directing it into your trust, your state’s intestacy laws determine who receives it.
The question to ask about every asset you own: What happens to this asset when I die?
Resources & Links
Watch this episode on YouTube: https://youtu.be/oeXWOkYpjoQ
Tennessee estate planning services: https://www.deathreadiness.com/estate-planning-solution
Episode 19: Why You Need or Don’t Need a Trust: https://www.deathreadiness.com/podcast/episode-19-how-to-know-if-you-need-a-trust
Probate Infographic: https://www.deathreadiness.com/probate-infographic
Episode 38: Why You Need or Don’t Need a Will: https://www.deathreadiness.com/podcast/why-you-need-or-dont-need-a-will
Financial Power of Attorney podcasts:
Episode 17: How Powers of Attorney Work, When to Use Them, and When It’s Too Late to Get One: https://www.deathreadiness.com/podcast/episode-17-how-powers-of-attorney-work-when-to-use-them-and-when-its-too-late-to-get-one
Episode 68: Why Good Powers of Attorney Still Fail: https://www.deathreadiness.com/podcast/68
Connect with Jill:
Did you enjoy this episode? Share it with someone you care about.
A pour-over Will is an important backup plan for assets that never made it into your trust but there’s a catch: those assets have to go through probate first. Today, I explain how pour-over Wills actually work, why funding your trust matters, and the question you should ask about every asset you own if avoiding probate is the goal.
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
I came to the Adirondacks for the summer with exactly two work-appropriate shirts. This was sort of intentional. I work remotely, and most of my client engagements involve two Zoom meetings: an initial planning meeting and another meeting after I’ve drafted the estate planning documents so we can review everything together.
Two meetings. Two shirts. And if we need a third zoom meeting? I figure enough time has probably passed that no one remembers what I wore to the first one anyway. I can just start the two-shirt rotation over.
This system worked perfectly well until recently, when I had three Zoom calls with the same colleague in pretty quick succession.
And suddenly my two-shirt system had a problem. Now, did I have other options? Of course. My husband arrived at the lake about three weeks after I did. I could have asked him to bring me another work shirt. I didn’t.
I also could have gone out and bought another shirt. I didn't do that either. I chose the easiest remaining option: I just wore the shirt again. So before our third Zoom call, I emailed my colleague and said, "Just so you know, I'm going to be wearing the same shirt.” Her response was an amused, “I LOOOVE that shirt!”
Unfortunately, when we're talking about what happens to your assets after you die, you don't always get to choose the easy remaining option because often, there isn’t one. If you created a revocable trust to avoid probate but left an asset sitting outside of it, there is a backup plan. It's called a pour-over Will. And it's a good backup plan.
But using it requires more work than getting the asset into the trust, or otherwise arranging for it to avoid probate in the first place. Because if you die with a probate asset that needs to get into your revocable trust, you can't just put the same shirt on again and hope no one notices. That probate asset has to go through probate. And that's what we're talking about today, how you get your probate asset from your pour-over Will into your revocable trust.
Maybe someone told you that you need a revocable trust to avoid probate. Or maybe you listened to my earlier podcast episode, Why You Need—or Don’t Need—a Trust, and decided that avoiding probate makes sense for you. If you haven’t listened to that episode, I’ll link to it in the show notes.
So, let’s say you meet with an estate planning attorney and you create a revocable trust. But along with that trust, your attorney also gives you a Will. And you might reasonably wonder: Wait. If I have a trust that's supposed to avoid probate, why do I still need a Will?
Your attorney may explain that this particular Will is called a pour-over Will. Its job is to catch assets that are still in your individual name when you die and direct them, or “pour them over,” into your revocable trust. Which sounds pretty great. Because maybe you don't have to worry so much about getting everything into the trust during your lifetime because the pour-over Will can take care of whatever you missed after you die.
Except there's a catch. While the pour-over Will eventually gets those assets into your trust, it doesn't get them there without probate. Your executor has to go through probate court first before the asset can be poured into the trust. And that's the distinction we're going to unpack today.
But first, let's do a quick refresher on revocable trusts.
A revocable trust is a legal arrangement in which the grantor transfers property to a trustee, who holds and manages that property for the benefit of the trust's beneficiaries. When you create your own revocable trust, you are all three of those people during your lifetime. You're the grantor because you created the trust. You're the trustee because you're managing the trust property. And you're the beneficiary because the trust property is being held and used for your benefit during your lifetime. Lastly, you can name a successor trustee who is able to control the trust if someday you can’t manage it yourself, or upon your death. This way, you can access the money in your trust while you’re alive, but also pass it on to others after your die without going through probate court.
But here's the part that's especially important for today's discussion: Your revocable trust can only control the assets that actually make it into the trust. And this is where people can get into trouble.
Let's say I decide I want to use a revocable trust to avoid probate. I meet with an estate planning attorney and create the Jill Mastroianni Revocable Trust.
I sign the trust agreement as both the grantor and the trustee. I'm also the beneficiary. And then I go home with a beautiful binder containing my very official, very impressive-looking revocable trust agreement.
Am I done? Nope. Because creating a trust and funding a trust are two entirely different things. Creating the trust gives you the legal structure. Funding the trust is what gets your assets into that structure.
And if you're in Tennessee and you're thinking, “Okay, but how do I know what I actually need to make sure my estate plan works?” that's exactly the kind of question we address as part of my estate planning process.
I don't want you to leave with a stack of documents you don't understand and assume you're finished. I want you to understand how the pieces of your estate plan are supposed to work together.
You can learn more about working with me at DeathReadiness.com/solutions. That’s deathreadiness.com/solutions.
Okay, so, when we talk about "funding" a revocable trust, we're generally talking about changing ownership of an asset so that you no longer own it simply in your individual name. Instead, you own it in your capacity as trustee of your revocable trust.
And that distinction between creating the trust and actually getting your assets into it is the key to understanding why your pour-over Will is a backup plan, not a probate-avoidance plan.
Let's use a bank account as an example. Before I create my trust, my bank account is owned by me, Jill Mastroianni
If I want to fund my revocable trust with that bank account, I would need to change the ownership to something like:
Jill Mastroianni, Trustee of the Jill Mastroianni Revocable Trust under agreement dated August 25, 2026, and any amendments and restatements thereto.
I know. That's a lot of words. But I like to be thorough. From my perspective, not much has changed. It's the same bank account. It's the same money. I can still deposit money, withdraw money, pay bills, and use the account just like I did before. But legally, something important has changed: I now own that account in my capacity as trustee of my revocable trust rather than simply as Jill Mastroianni, individually.
Now, sometimes that seemingly simple change creates a very practical problem for my older clients who still use checks regularly. If we change the ownership of their checking account, the bank will require them to get new checks. For some people, getting new checks isn’t a big deal. Other people just don’t want the hassle. If you’re one of those people who doesn’t want the hassle, what can you do?
Well, there’s a second option: if your goal is simply to keep that bank account out of probate when you die, you can name the revocable trust as the payable-on-death or transfer-on-death beneficiary of the bank account.
The account stays in the client's individual name during the client's lifetime. But at death, it passes directly to the revocable trust through that beneficiary designation. No pour-over Will is needed to transfer the bank account to the revocable trust at your death.
A payable-on-death designation is relatively easy, but there's another issue we need to think about. Probate avoidance is only about what happens when you die. One of the other reasons someone might use a revocable trust is to make it easier for someone else to manage their assets if they become incapacitated during their lifetime.
If the bank account is actually owned by the revocable trust, the successor trustee can step in and manage the trust account according to the terms of the trust if you, the original trustee can no longer do so.
If we leave the bank account in the client's individual name and simply name the trust as the payable-on-death beneficiary, that's different. The trust doesn't own the account while the client is alive. The payable-on-death designation doesn't become effective until death. We have another option for managing your accounts during incapacity. That's where a financial power of attorney comes. If you want to learn more about how those works, I will link in the show notes to the episodes where I do a deeper dive into them.
But let's come back to our bank account, because this is the part I really want you to understand today. We now have two possible ways for my bank account to get into my revocable trust at my death without relying on my pour-over Will.
Option one is that I retitle the bank account in the name of my revocable trust during my lifetime. The account is already in the trust when I die. Option two is that I keep the account in my individual name but name my revocable trust as the payable-on-death or transfer-on-death beneficiary. The account isn't in the trust while I'm alive, but when I die, it passes directly to the trust through that payable-on-death designation. Either way, my pour over Will doesn't have to do anything with that bank account because that bank account is not a probate asset. It's either already in the trust or it has a built-in way to get there when I die. At least as far as this bank account is concerned, we've accomplished our probate-avoidance goal.
Now let's change the facts. I create the Jill Mastroianni Revocable Trust, but I never change the ownership of my bank account. I also don't name my trust, or anyone else, as the payable-on-death or transfer-on-death beneficiary.
So when I die, the account is still titled simply: Jill Mastroianni.
What happens to it? Well, it's a probate asset. And now my pour-over Will comes into play. Remember, a pour-over Will is a Will that says: Take the probate assets I own at my death and distribute them to the trustee of my revocable trust, where they'll be administered according to the terms of that trust.
In other words, the pour-over Will catches the things that fell through the cracks. I didn't get this bank account into my trust during my lifetime. And I didn't give it another way to get into the trust automatically at my death.
So my pour-over Will is the backup plan. And that's a good thing. I want a backup plan. But here's the part that's easy to misunderstand: The pour-over Will gets the bank account into my trust. It does not get the bank account in my trust without probate.
To understand why, we need to back up for just a minute and talk about probate assets.
A Will controls your probate assets. And a probate asset is an asset or ownership interest you own in your individual name at your death that has no built-in way to get to its next owner. There's no surviving joint owner with survivorship rights, no beneficiary or payable-on-death or transfer-on-death designation. And, in our example, the asset isn't already owned by my revocable trust.
So something has to legally move that asset from the deceased Jill Mastroianni to whomever is supposed to receive it next. That's what the probate process does.
I like to think of probate as the bridge that gets an asset from its deceased owner to its next owner. My pour-over Will tells us where the asset should go after it crosses that bridge. It doesn't eliminate the bridge.
Let's go back to my bank account. I've died. The account is still titled simply Jill Mastroianni. My executor can't just walk into the bank with my pour-over Will and say, "Hi. Jill wanted this money in her trust so please move it there."
The executor first needs legal authority to act on behalf of my estate. That means filing a petition with the probate court to open my probate estate. Once the court appoints my executor, the court issues documentation called Letters Testamentary showing that my executor has authority to act on behalf of my estate.
Now my executor can deal with the bank. The executor collects the money from the account as part of my probate estate and then follows the instructions in my pour-over Will.
And what does my pour-over Will say to do with it? It says to give the bank account to the trustee of the Jill Mastroianni Revocable Trust. So the trustee receives the money, adds it to the trust, and ultimately administers it according to the terms of my trust.
Only after that probate process does the money make it into my revocable trust.
Let's look at the route it took: From Jill Mastroianni, individually, to the probate estate to my revocable trust to the trust beneficiaries.
Now compare that with the bank account I properly retitled into my revocable trust while I was alive:
From my revocable trust to the trust beneficiaries.
Or the account I left in my individual name but made payable on death to my trust:
From Jill Mastroianni, individually, to my revocable trust to the trust beneficiaries.
So, the pour-over Will can absolutely get an asset where I ultimately want it to go. That's why it's a valuable backup plan. But it can't magically erase that probate step in the middle. And if your entire reason for creating the revocable trust was to avoid probate, that's a pretty important distinction.
If you're still a little fuzzy on the difference between probate and non-probate assets, I'll link to my probate versus non-probate asset infographic in the show notes, along with my earlier episode, Why You Need—or Don't Need—a Will. Both will give you a deeper foundation into how it all works.
Now, I don't want you to hear all of this and think, "Well, then my pour-over Will is useless." It's not. A pour-over Will is a really important backup plan. And I also don't want you to think that if one asset accidentally ends up going through probate, your entire revocable trust plan has somehow failed.
It hasn't. Depending on where you live, one reason to avoid probate is to keep large, valuable assets like your home out of probate. We’ll look at California for an example. Let's say you live in California and own a home worth $1 million. You still owe $700,000 on the mortgage, so you really only have $300,000 of equity in the house so that’s what you have to pass on.
But California's statutory probate fees payable to the Executor are based on the gross value of the probate estate, not the equity that's left after subtracting the mortgage.
For a $1 million probate asset, the statutory fee works out to:
4% of the first $100,000, or $4,000.
3% of the next $100,000, or $3,000.
And 2% of the next $800,000, or $16,000.
That's $23,000. And that's not the end of it, because the attorney for the estate is also entitled to the same statutory fee. So we're potentially talking about $46,000 in statutory fees associated with a $1 million probate asset, even though there's only $300,000 of equity in the house.
Now let's say you did the important thing: you transferred that house into your revocable trust. But you forgot about a much smaller bank account. Would it have been better if you had taken care of the bank account, too?
Sure. But that doesn't mean your plan failed. You kept the $1 million house out of probate. And that's a pretty significant accomplishment. The bank account will have to go through probate and then into your trust through your pour-over Will, but that's exactly why you have the pour-over Will. It's there because none of us executes an estate plan perfectly forever.
You might fully fund your trust today and then open a new bank account three years from now and forget about it. You might change financial institutions. You might do everything exactly right today, and then life changes tomorrow. The pour-over Will is there to catch what you missed.
And that's important, because let's think about what would happen without it. Let's say I die with that bank account still in my individual name. There's no joint owner. There's no payable-on-death or transfer-on-death beneficiary. So this bank account is a probate asset.
If I have a pour-over Will, my Will says: Once this asset goes through probate, send it to my revocable trust. But if I don't have a Will at all, my state's intestacy laws determine where that probate asset goes. Intestacy laws are your state's default rules for who inherits your probate assets when you die without a Will. Instead of me providing the instructions, state law provides them for me.
So yes, I absolutely want the pour-over Will. I want the backup plan. I just don't want to confuse the backup plan with the probate-avoidance plan. Those are two very different things.
And that's why, if your goal is avoiding probate, "Do I have a trust?" is not the most useful question.
The better question is: "How does each of my assets pass when I die?" Take them one at a time. Your house. Your checking account. Your savings account. Your brokerage account. Your retirement accounts. Your life insurance. And ask the same question about every one:
What happens to this asset when I die? Maybe it's owned by your revocable trust, has a beneficiary designation, has payable on death or transfer on death designation, or is owned jointly with someone else with survivorship rights. Those can all be ways that an asset passes without your Will controlling it.
But if you get to an asset and the answer is: "It's in my individual name, and there's no beneficiary designation, then you have a probate asset. And if your Will says that asset goes to your trust, that's where the pour-over Will does its job. After probate.
And this is probably the bigger lesson. If you created a revocable trust specifically to avoid probate, you can't just sign it, put it on a shelf, and assume you're finished. You need to fund it. And then you need to pay attention to what happens afterward.So let's go back to where we started. If you have a revocable trust and a pour-over Will, does the pour-over Will make sure everything ends up in your trust? It can help. But does it mean everything avoids probate? Absolutely not. Your pour-over Will is the safety net. It's there to catch probate assets that didn't make it into your trust during your lifetime and direct them into the trust after your death.
But if avoiding probate was the reason you created your trust in the first place, don't rely on the safety net. Fund the trust. Review how your assets are titled. Check your beneficiary designations. And revisit all of it periodically, because your financial life doesn't stop changing just because you signed your estate planning documents.
If you're in Tennessee, here's one thing I don't want you to do: spend the time and money creating an estate plan and then find out later that the pieces didn't actually work together.
My job isn't just to draft your documents. It's to help you understand what they're supposed to accomplish and how they fit with the way you actually own your assets.
If that's the kind of estate planning help you're looking for, you learn more at deathreadiness.com/solutions. That’s deathreadiness.com/solutions.
Thanks for listening today.
Signature Signoff
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney.The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.